Shepherd v. Shepherd , 57 N.C. App. 680 ( 1982 )

292 S.E.2d 169 (1982)

Patricia Smith SHEPHERD
v.
Herbert Dan SHEPHERD.

No. 8112DC668.

Court of Appeals of North Carolina.

June 15, 1982.

Moses, Diehl & Pate by Philip A. Diehl, Raeford, for plaintiff-appellant.

Locklear, Brooks & Jacobs by Dexter Brooks, Pembroke, for defendant-appellee.

MORRIS, Chief Judge.

Plaintiff argues, by her sole assignment of error, that the trial court erred in granting defendant's motion for a directed verdict at the close of plaintiff's evidence. Defendant responds that plaintiff's cause of action in tort is barred by the statute of limitations for relief on the ground of fraud, and by the doctrine of unclean hands; that the parties voluntarily settled their differences via a binding accord and satisfaction or compromise; and that plaintiff failed to demonstrate that she suffered actual damages as a consequence of any wrongful conduct of defendant. We hold plaintiff's cause of action was barred by G.S. 1-52(9), the three-year statute of limitations for actions based on fraud. Therefore, the court's action in granting defendant's motion for summary judgment did not constitute reversible error.

An action for fraud accrues when the aggrieved party discovers the facts constituting the fraud, or when, in the exercise of due diligence, such facts should have been discovered. Wilson v. Development Co., 276 N.C. 198, 171 S.E.2d 873 (1970). The uncontroverted evidence shows that as early as 1971, plaintiff had had warning that defendant remained party to a previous marriage, when Linda Britt Shepherd visited defendant's residence and later sued, with plaintiff's knowledge, for divorce from defendant. Plaintiff also discussed defendant's marital status with defendant's mother and brother. "A party having notice must exercise ordinary care to ascertain the facts, and if he fail to investigate when put upon inquiry, he is chargeable with all the knowledge he would have acquired, had he made the necessary effort to learn the truth of the matters affecting his interests. Hargett v. Lee, 206 N.C. 536, 539, 174 S.E. 498, 500 (1934). Failure to discover the facts constituting fraud may be excused, however, where a confidential relationship exists between the parties. Small v. Dorsett, 223 N.C. 754, 28 S.E.2d 514 (1944). The relationship between husband and wife is the most confidential of all relationships. Eubanks v. Eubanks, 273 N.C. 189, 159 S.E.2d 562 (1968). A confidential relationship also exists between a couple contemplating marriage, and a woman is generally entitled to rely on her fiancee's representation that he is eligible to marry. Humphreys v. Baird, 197 Va. 667, 90 S.E.2d 796 (1956). Yet failure of the defrauded party to use diligence in discovering the fraud is not wholly excused merely because a relation of trust and confidence exists between the parties. The law only goes so far as to say "that when it appears that by reason of the confidence reposed the confiding party is actually deterred from sooner suspecting or discovering the fraud, he ``is under no duty to make inquiry until something occurs to excite his suspicions.' "(Emphasis added.) Vail v. Vail, 233 N.C. 109, 116-117, 63 S.E.2d 202, 208 (1951). "A man should not be allowed to close his eyes to facts readily observable by ordinary attention, and maintain for his own advantage the position of ignorance." Peacock v. Barnes, 142 N.C. 215, 218, 55 S.E. 99, 100 (1906). "``This can only mean that the defrauded party's ignorance must not be negligent; that he remains ignorant without any fault of his own; that he has not discovered the fraud, and could not by any reasonable diligence discover it....'" Id. at 219, 55 S.E. at 100. A defendant, upon less notice than was present here, was negligent in not inquiring whether his divorce from a prior spouse was defective. Redfern v. Redfern, 49 N.C.App. 94, 270 S.E.2d 606 (1980). We hold, therefore, that plaintiff had been put on sufficient notice reasonably to require inquiry which would have discovered the facts and that she failed to exercise due diligence, after receiving several clear warnings, to determine whether he was still married to Linda Britt Shepherd. The action was barred at the time of its institution in 1980, and a directed verdict was properly entered at the close of plaintiff's evidence. See Blankenship v. English, 222 N.C. 91, 21 S.E.2d 891 (1942); Hargett v. Lee, supra.

Plaintiff's claim was couched firmly in tort. Paragraph 12 of the third cause of action set forth in the complaint alleged

That the defendant knowingly and willfully induced the plaintiff into a marriage ceremony ... when in fact the defendant full well knew and held secret from the plaintiff that he was then and there lawfully married to Linda Britt Shepherd and that neither he nor the said Linda Britt Shepherd had obtained a lawful divorce from the other. That the defendant held such knowledge secret from the plaintiff to wrongfully and maliciously obtain from the plaintiff her companionship and her love and affection.

The Supreme Court of North Carolina has recognized an action in quantum meruit in favor of one who is fraudulently induced to go through a marriage ceremony with someone having a living lawful spouse, where the still-married party thereafter is unjustly enriched by the innocent party's performance of valuable services. Sanders v. Ragan, 172 N.C. 612, 90 S.E. 777 (1916). An action on an implied contract may be brought upon such facts as are before us, id., but plaintiff chose to ground her action in tort. Plaintiff's tort claim, as we held above, is barred by the three-year statute of limitations. We need not further determine whether the complaint states a cause of action in contract, as G.S. 1-52(1) limiting actions "[u]pon a contract ... express or implied ..." is also a three-year statute. Since plaintiff should have had knowledge of the relevant facts as early as 1971, it cannot be said, nor was it alleged, that services rendered after that time were either given in expectation of pay, that a contract existed by tacit understanding, or that reason and justice impose an obligation on defendant. See Sanders v. Ragan, supra.

Plaintiff's brief raises an issue of breach of promise to marry. She did not, however, plead a cause of action for breach of promise to marry. On the contrary, her complaint alleges that "the plaintiff ... asked defendant to enter into a valid marriage ceremony with her, however, the defendant continuously refused...."

The order of directed verdict was appropriately entered. The court's judgment is, therefore,

Affirmed.

HEDRICK and VAUGHN, JJ., concur.