It may be essential justice in many cases that, where a wife has rendered services outside the discharge of her household duties, she should receive compensation, and she certainly can do so where there is such agreement with her husband; but in this case there is no such agreement, expressed or implied or even alleged. An implied agreement for compensation always depends upon the surroundings and the conditions attendant upon the rendition of the services.

In Prince v. McRae, 84 N. C. 675, the court said: "Whether the plaintiff's services shall be deemed a gratuity or constitute a claim for compensation must be determined by the common understanding of both parties. If they were intended to be and accepted as a gift or act of benevolence, they cannot, at the election of the plaintiff, create a legal obligation to pay."

The general principle of a quantum meruit is clearly stated in Winkler v. Killian, 141 N. C. 578, 115 Am. St. Rep. 694, 54 S. E. 541, in which Hoke, J., said: "It is ordinarily true that where services are rendered by one person for another, which are knowingly and voluntarily accepted, without more, the law presumes that such services are given and received in expectation of being paid for, and will imply a promise to pay what they are reasonably worth. This is a rebuttable presumption, for there is no reason why a man cannot give another a day's work as well as any other gift, if the work is done and accepted without expectation of pay."

And that case further says that. it is equally well established that where a child resides with a parent as a member of the family, "services rendered under such circumstances by the child for the parent are, without more, presumed to be gratuitous, and no promise will be implied, and no recovery can be had without proof of an express and valid promise to pay, or facts from which a valid promise to pay can be reasonably inferred. This last po23 A.L.R.-2.

sition is usually considered as an exception to the general rule, and in this and most other jurisdictions obtains both as to adult and minor children."

This same reasoning, it seems, should apply with equal, if not greater, force where the services are rendered by the wife, though outside her household duties, in aiding her husband in the support of the family. It is not usual, certainly, that the wife should receive compensation in such cases, and obligation of payment cannot arise in the absence of an express agreement or such facts and circumstances from which an implied promise will arise independently of the mere fact that the services were rendered by the wife to the husband, outside her household duties.

The general principle as to implied promises to pay as between members of the family has been thus stated: "Where it is shown that a person rendering services was a member of the family of the person served, and received support therein, a presumption of law arises that such services are gratuitous; and in such cases, before the person rendering the service can recover, the express promise of the party served must be shown, or such facts and services as will authorize the jury to find that there was the expectation by the one of receiving, and by the other of making, compensation therefor."

This has been repeatedly and uniformly held by our courts. Among the numerous cases in point is Dodson v. McAdams, 96 N. C. 149, 60 Am. Rep. 408, 2 S. E. 453, in which it is said: "The presumption against a promise to pay for such labor may be overthrown by an agreement to pay for the same, appearing in terms or by any proper proof to establish the same."

In Avitt v. Smith, 120 N. C. 393, 27 S. E. 92, the court said: "In ordinary dealings the law implies a promise to pay for services rendered by one for another. This presumption may be rebutted by the rela

tions of the parties, as father and child, stepfather and child, and grandfather and child, etc. In the absence of some express contract, express or implied, showing an intention on the part of one to charge and the other to pay, the presumption is rebutted by the relationship,"-cited in Ellis v. Cox, 176 N. C. 618, 97 S. E. 468; Stallings v. Ellis, 136 N. C. 72, 48 S. E. 548; Hicks v. Barnes, 132 N. C. 150, 43 S. E. 604, and other cases.

The principle running through all the cases is nowhere better summed up than by Walker, J., in Dunn v. Currie, 141 N. C. 127, 53 S. E. 534: "These cases establish the principle that certain relations existing between the parties raise a presumption that no payment was expected for services rendered or support furnished by the one to the other. The presumption, standing by itself, repels what the law would otherwise imply; that is, a promise to pay for them; but this presumption is not conclusive, and may, in its turn, be overcome by proof of an agreement to pay, or of facts and circumstances from which the jury may infer that payment was intended by one of the parties and expected by

the other."

It is true that in none of our cases was the relationship that of husband and wife, but the principle applies with as full, or greater, force in such a case as in those which have been presented. Where the wife has rendered services to a third party, the statute gives her a right to recover her earnings for

circumstances from which a jury can infer either an express promise or the understanding and intention of the parties that the wife should receive compensation.

There are instances where there is not only a matrimonial partnership between a husband and wife, but a financial or business partnership; also where the wife is to receive compensation from her husband for services rendered; but in all such cases the business partnership, or the liability of the husband to the wife for compensation, must arise out of an agreement, not out of the marital relation, ex jure marito, which, if it extended to business matters, would make each responsible for the debts of the other.

legation of such contract, or of an understanding or intention between the parties that the wife should receive compensation.

In this case there was not even al

The judgment sustaining the demurrer is affirmed.

As to effect of intermarriage of parties upon contract for services, see annotation in 14 A.L.R. 1013.

In view of the generally accepted principle that, under the common law, one of the duties imposed upon the wife by the marital relation is to serve her husband, and that her time, services, and earnings during cover

ture belong absolutely to him, it would seem to be unquestioned that, in the absence of statutory provision, a wife cannot claim pay for services rendered her husband, even though they be outside the home; as, for instance, in carrying on his business; and especially where there was no express promise or agreement to pay

therefor. In Whitaker v. Whitaker (1873) 52 N. Y. 368, 11 Am. Rep. 711, the court said: "If a wife can be said to be entitled to higher consideration or compensation because she labors in the field instead of in her household (which I do not perceive and cannot admit), the law makes no such distinction. It never has recognized the right to compensation from her husband on account of the peculiar character of her services. In most cases she probably contributes more to the happiness of her family by the proper discharge of the delicate and responsible duties of her household than by any outside labors, however arduous. It is clear that the law regards neither as any consideration for a promise founded thereon from the husband." In Copp Copp v. Copp (1907) 103 Me. 51, 68 Atl. 458, without reference to any statutory provision or contract between the parties, it was held that a wife had no right of action against her husband for labor performed in acting as cook in his logging camp.

But the strictness and rigidity of the common-law rules have been greatly relaxed and modified by legislative enactments, furthered, in some instances, by liberal construction of such statutes by the courts; so that the now-important question is whether or not these various statutes-and they vary considerably as to phraseology-so enlarge the rights. of the wife as to permit her to recover for services rendered the husband in his business.

There has been some controversy as to whether or not the enabling statutes permit a recovery in the absence of a contract to pay the wife for the services rendered. On the one hand, we have the decision in the reported case (DORSETT V. DORSETT, ante, 15) to the effect that a statute providing that "the earnings of a married woman by virtue of any contract for her personal services" can be recovered by her as her sole and separate property as fully as if she had remained unmarried does not permit a married woman to recover for services rendered in her hus

band's store and shop; at least, in the absence of an express agreement, or facts and circumstances from which can be inferred either an express promise or the understanding and intention of the parties that she is to be paid for the services. And in the Pennsylvania case of Standen v. Pennsylvania R. Co. (1906) 214 Pa. 189, 63 Atl. 467, 6 Ann. Cas. 408, in holding that a married woman was not entitled, under the Pennsylvania Enabling Statutes, to pay for services rendered her husband in his greenhouse, there being no contract to pay therefor, the court said: "It is claimed that, under the the present legislation in this state, a married woman is entitled to her earnings while engaged in her husband's business, and, to that extent, the commonlaw rule is abrogated. But this contention is based on an erroneous interpretation of the present, as well as of the past, legislation affecting the rights of married women. That legislation vests in a married woman all earnings acquired by her in carrying on any separate or independent business, or in performing any labor or services on her sole and separate account. This changed the commonlaw rule, and takes such earnings from the husband, and gives them to the wife absolutely. The legislation, however, does not affect or change the rule as to the earnings of the wife, acquired in her capacity as wife for services rendered about her household duties, or when assisting her husband in his business. In the absence of an agreement to the contrary, such earnings continue to belong to the husband, and neither his wife nor her creditors can assert a right to them by an action at law or otherwise. It is only when she engages at labor or in business in her own right, and not as wife, that the statute declares that the accumulations or earnings from that labor or business shall be her property, and belong to her, and not to her husband or his creditors. It was not the intention of the legislation to deprive the husband of his common-law right to the earnings or services of his wife,

rendered as wife, by her in and about either their domestic matters or his business affairs. For such services, she has no legal recourse against him or his estate."

And it has been held that in view of Illinois Rev. Stat. chap. 8, § 6, which expressly provides that the wife cannot recover any compensation for any labor or services rendered for her husband, whether in the management of property or otherwise, there is no implied contract upon the part of the husband to pay his wife for labor performed by her as a laborer in the fields on his farm. Miller v. Smith (1907) 137 Ill. App. 467. And that, in Illinois, the fact that a wife assists her husband in or about his business does not raise an implied contract to pay therefor, see Switzer v. Kee (1893) 146 Ill. 577, 35 N. E. 160, and Overbeck v. Ahlmeier (1903) 106 Ill. App. 606. And that in Vermont, in the absence of an agreement between the husband and wife, she is not entitled to pay for assistance rendered her husband in his business, see Monahan v. Monahan (1903) 77 Vt. 133, 70 L.R.A. 935, 59 Atl. 169. But in Re Cox (1912) 199 Fed. 952, without other discussion of the question, it was held that merely placing upon the wife the duty of keeping the books and accounts for her husband's business, which duty she performed until his failure, was sufficient to raise an implied promise to compensate her therefor, and an allowance of wages was made in the bankruptcy proceedings. And in Smith v. Axe (1894) 14 Pa. Co. Ct. 532, it was held, under the Pennsylvania Act of 1887, which entitled the wife to her earnings, that the services of the wife in her husband's business do not belorg to him. It does not appear that there was any contract in this case, but if there was not, the decision apparently is in conflict with the opinion of the supreme court in Standen v. Pennsylvania R. Co. (Pa.) supra.

With respect to whether or not the various enabling statutes permit a married woman to contract with her

husband for her services in connection with his business, there is considerable controversy, the majority of the statutes having been construed to grant such a right, while a few, even of the broader statutes, have been construed as not having that effect.

Thus, under an Indiana statute abolishing "all legal disabilities of married women to make contracts," except as otherwise provided, it has been expressly held (Roche v. Union Trust Co. (1899) Ind App. - 52 N. E. 612, quoting and applying Horner's Rev. Stat. 1897, § 5151, which law was enacted in 1881) that a married woman may contract with her husband to render services to him as a clerk in his store, notwithstanding an additional statutory provision that the earnings of any married woman, accruing from her service or labor, "other than labor for her husband or family, shall be her sole and separate property," provided the services so contracted for, and as is the present case, are such as the marital relations do not enjoin upon her. This was upon the theory that, while such a proviso would render a contract to pay for services in performing duties incumbent upon her by reason of her marital relations, without consideration, void, it should not be so construed as to deny her the right to contract for services which she was under no marital obligation to perform, and therefore that a contract for such outside services was based upon a consideration sufficient to support it. It was also said that this conclusion could not be altered on the theory that the wife has no power to contract with her husband because of the unity of the two, for the obvious reason that the statute itself removes the disability, and empowers her to make contracts with her husband except as this right is expressly qualified. And it was further held that such a contract is not subject to the objection that it is void because contrary to the contractual obligation imposed in the contract of marriage, when it merely calls for services which are not im

posed by reason of the assumption by the wife of the marital relation.

And it has been held that a statute removing all disabilities which coverture formerly imposed upon married women, so far as their separate property and earnings are concerned, and placing her upon the same footing as a feme sole, permitted a wife validly to contract to serve for a stated consideration as cook for her husband's traveling threshing outfit, it appearing that such services were not domestic, but were performed away from home. Tuttle v. Shutts (1908) 43 Colo, 534, 96 Pac. 260, construing Mills's Anno. Stat. (Colo.) chap. 83.

And it has been held that a statute giving married women their earnings absolutely enables a married woman to contract with her husband for her services as agent in his business for a stipulated commission on sales. In construing and applying the Illinois Statute of 1869, it was so held in Re Hay (1874) Fed. Cas. No. 6,252, where there was a special agreement for a commission on sales, even though the statute also provided that it should "not be construed to give the wife any right to compensation for any labor performed for her husband or minor children." In reaching this conclusion the court took the position that such proviso was applicable only to cases where there was no special agreement as to the wife's compensation, and that she, having the right to her earnings, could agree to work for her husband about his business as well as for a stranger. Likewise in Re Davidson (1916) 233 Fed. 462, construing Alabama Code 1907, §§ 4487, 4492, 4497, which provide that "the wife has full legal canacity to contract as if she were sole," that "the husband and wife may contract with each other, but all contracts into which they enter are subject to the rules of law as to contracts by and between persons standing in confidential relations," and that "the earnings of the wife are her separate property," but that "she is not entitled to compensation for services rendered to or for her hus

band," it has been held that a wife who, in addition to discharging fully her marital duties, served as a clerk in her husband's store under an express contract calling for a reasonable and fair compensation, upon the bankruptcy of the husband, was entitled to priority on her claim for wages. The court reasoned that the provision as to confidential relations did not qualify the right to contract, but was a mere rule of evidence, and that the provision as to contracts for services rendered the husband related to services rendered in discharge of duties growing out of and inseparably connected with the marriage relation, but did not deny the right to contract in respect to services outside of the duties incumbent on her as wife. And comparing the common-law doctrine with the modern theories, the court said: "Of course, there is no sound ethical reason why the wife may not perform, outside of her marital duties, services as clerk for the husband, and be paid therefor. Here she is not asking any recompense for the discharge of her duties as wife and housekeeper. But it may be observed that she made the home comfortable and attractive for her family; that she was always considerate of the sometimes neglected individual, the husband. . . The opposing creditors, however, contend that the wife was under the disability of that relic of barbarism which denied her the right to enter into the contract with her husband. This archaic rule was a part of the rich inheritance from the common law, and, of course, at one time obtained in Alabama. It is sufficient to say, for the purposes of this case, that the common law treated the wife as though she were the chattel of the husband, and then, as if to treat her in more sympathetic fashion, declared that, upon her marriage, the existence of the wife became merged into that of the husband. This ought not to be -this cannot be the idea now. There are several statutes in Alabama which evidence the fact that this commonwealth has liberated the wife from such indefensible thral