Alpha v. Aucoin
| Decision Date | 04 May 1936 |
| Docket Number | 16204 |
| Citation | 167 So. 835 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | ALPHA v. AUCOIN |
Rehearing denied June 1, 1936.
Dart & Dart, Robert Ewing, Jr., and Leo J. Dubourg, all of New Orleans, for appellant.
S. T Darden, of New Orleans, for appellee.
Plaintiff, a practicing attorney in the city of New Orleans, brings this suit on a quantum meruit for professional services claimed to have been rendered to the defendant. It is alleged that the total value of the services performed was the sum of $ 2,000.
The defendant excepted to the petition on the ground that it did not state a right or cause of action. This exception was overruled by the trial court, and, after answer filed, the case was heard, resulting in a judgment in favor of plaintiff in the sum of $ 500. The defendant has appealed, and plaintiff has answered the appeal, praying for an increase in the award.
At the outset we are confronted with the problem of determining the soundness of the exception of no cause of action.
The petition alleges in substance as follows:
On February 6, 1933, the defendant consulted the plaintiff professionally regarding the advisability of shifting certain money belonging to the community of acquets and gains existing between her husband and herself fro certain banks in New Orleans, where said money was deposited, to other banks, due to the fact that, at that time, several banks in New Orleans were in an unstable condition. The plaintiff, after several conferences, advised the defendant concerning the protection of the money of the community, and his advice was adopted by the defendant. Plaintiff values this service at $ 500.
It is further alleged that on February 14, 1933, suit was entered by the defendant's husband against her in the civil district court, for divorce upon the ground of adultery, seeking also a dissolution and division of the community, and that a restraining order was granted enjoining the defendant from disposing of any community property existing between the spouses.
It is averred that the defendant employed the plaintiff to defend her in the aforesaid action, and that accordingly he prepared an answer to the rule nisi which was filed in that case. It is further alleged that the restraining order had the effect of tying up some $ 80,00 or $ 90,000 of money and property which belonged to the community, inclusive of all funds necessary to carry on the business of the "Aucoin Perfume Company," which was operated by the defendant, that the defendant's husband was an invalid, and that the business of the "Aucoin Perfume Company" was under the control and management of the defendant.
After the plaintiff had been engaged by the defendant and had filed the answer to the rule nisi in the divorce action, he was discharged by the defendant on the day the rule was fixed for trial. For the services rendered in the divorce action plaintiff claims $ 1,000.
It is further alleged that, during the time the divorce proceedings were instituted, the plaintiff had many conferences with the defendant having reference to the defense to be interposed in the divorce case, and the defendant insisted that her husband was under the illegal influence of certain persons in Mississippi, being illegally restrained from his liberties, and that she directed the plaintiff to draw a habeas corpus proceeding in her name to be filed in the United States District Court at Gulfport, to the end that her husband be released from the custody of the persons detaining him. The plaintiff, in accordance with the instructions of the defendant, prepared a petition of habeas corpus to be filed, but the same was never instituted because of the fact that the plaintiff was, without just cause, discharged by the defendant. For the services rendered in preparing the habeas corpus proceeding the plaintiff claims the sum of $ 500.
We are informed by counsel for both plaintiff and defendant, in their briefs, that the judgment below for $ 500 was based upon the work performed in the divorce proceedings, although it does not appear in the judgment that the trial court was of opinion that no recovery could be had for the services alleged to have been performed in the advice given regarding the shifting of bank deposits and the preparation of the habeas corpus proceeding.
In view of the foregoing, it is pertinent that we consider the three items of professional services claimed separately.
The defendant contends that the items of $ 500 each, for professional services rendered in the shifting of bank deposits and the preparation of the habeas corpus proceeding, was a community debt for which recovery may be had only as against the husband, as head and master of the community. It is likewise asserted that the claim for services rendered in the divorce proceeding is a community debt and that the cause of action may be only filed against the husband in the same capacity.
The items claimed by the plaintiff for services rendered in the shifting of bank deposits and in preparation of the habeas corpus proceeding were contracted by the defendant during the existence of the community and for the benefit of the community.
By a succession of legislative enactments with a view of relieving married women from disabilities imposed under the articles of the Civil Code, culminating in the passage of Act No. 283 of 1928, married women are now permitted to contract obligations on behalf of the community. Moreover, under the provisions of the law as it now exists, a married woman may bind herself personally for the debts of the community. See United Life & Accident Ins. Co. v. Haley et ux., 178 La. 63, 150 So. 833. However, it has been held in the case of Wilson & Gandy v. Cummings (La.App. Second Circuit) 150 So. 436, that, in order to hold the wife individually liable for a community debt, the proof must be clear and convincing that it was her intention and purpose to become personally responsible.
The petition in this suit, in respect to the items claimed for services rendered in the shifting of bank deposits and in the preparation of the writ of habeas corpus, does not allege that the defendant intended to become personally liable for the services rendered, which were, undoubtedly, community debts, and, unless there are other allegations contained therein disclosing personal responsibility for these two items of service claimed, the exception is well taken.
We find that, by supplemental petition filed on January 15, 1935, it is alleged in substance that, at the time of the filing of the suit, the community of acquets and gains formerly existing between the defendant and her husband was dissolved by the judgment of divorce rendered, and that the defendant accepted the community and received, as her share of the same, community property valued at nearly $ 50,000. The community being dissolved and the defendant having accepted the same, she is liable for one-half of the debts thereof contracted during the marriage and not acquitted at the time of its dissolution, under the provisions of article 2409 of the Civil Code. See, also, Act No. 4, section 1 of 1882. Accordingly, if the value of the services rendered in shifting the bank deposits was $ 500, the defendant is liable for one-half thereof. The same is true with reference to the item claimed for services rendered, valued at $ 500, in preparing the habeas corpus proceeding.
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