D. H. Holmes Co., Limited v. Van Ryper

• Decision Date: 19 April 1937
• Docket Number: 16600
• Citation: 173 So. 584
• Court: Court of Appeal of Louisiana — District of US
• Parties: D. H. HOLMES CO., Limited, v. VAN RYPER et al

173 So. 584

D. H. HOLMES CO., Limited, v. VAN RYPER et al

No. 16600

Court of Appeal of Louisiana, Orleans.

April 19, 1937

Rehearing denied May 3, 1937. Writ of certiorari granted June 21, 1937.

Schwarz Guste, Barnett & Redmann, of New Orleans (Herman L. Barnett of New Orleans, of counsel), for Mrs. Dorothy Day Van Ryper.

Baldwin Haspel & Molony, of New Orleans (R. R. Rainold, of New Orleans, of counsel), for H. H. Morris.

Frymire & Ramos and C. L. Stiffell, all of New Orleans, for D. H. Holmes Co., Limited.

OPINION

McCALEB, Judge.

Dorothy Day Van Ryper was married to H. H. Morris on July 1, 1932. At the time of her marriage, she maintained a charge account in her maiden name with the D. H. Holmes Company, Limited, a department store in the city of New Orleans. In September, 1932, shortly after her marriage, this account was changed to the name of "Mrs. H. H. Morris." During the year 1934, Mrs. Morris left her husband and has not lived with him since that time, but the parties are not legally separated. During the month of December, 1935, Mrs. Morris purchased from the D. H. Holmes store various items of merchandise, amounting to a total of $ 274.05. These articles were charged to the account of "Mrs. H. H. Morris." Among the goods bought by her was a diamond wrist watch and wrist band, for the price of $ 250. The bill was not paid, and on February 10, 1936, D. H. Holmes Company, Limited, filed the present suit against both Mr. and Mrs. Morris, seeking judgment against them in solido on the open account for the purchases made by Mrs. Morris.

The petition sets forth, in substance, that Mrs. Morris maintained a charge account with the plaintiff, prior to her marriage, in her maiden name; that, after her marriage, this account was transferred to the name of Mrs. H. H. Morris; that the purchases, during the month of December, 1935, were made personally by Mrs. Morris; that they represent necessaries furnished to her, for which the community of acquets and gains, existing between her husband and herself, is responsible, and the prayer is for judgment against the spouses in solido in the sum sued for, with recognition of a vendor's lien and privilege upon the diamond wrist watch and wrist band.

Mr. Morris appeared and answered the petition, denying liability in the premises on the ground that the goods bought by his wife are not necessaries, as defined by the jurisprudence, and that he, as head and master of the community, is not responsible therefor.

Mrs. Morris also answered the petition, admitting that she made the purchases, as set forth in the plaintiff's petition, for the account of the community existing between herself and her husband; that the debt is one of the community, for which her husband is responsible; and that she is not individually liable therefor.

The case was tried on the foregoing issues, and the judge, after hearing the evidence, granted a judgment in favor of the plaintiff and against Mr. Morris for the claimed amount and dismissed its suit against Mrs. Morris. From this decision, Mr. Morris has appealed, and the plaintiff has also appealed from the judgment dismissing its suit as to Mrs. Morris.

Shortly after the trial in the court below, counsel for Mrs. Morris withdrew from the case, and other counsel have been employed in this court on her behalf. The latter have filed here an exception of no right or cause of action. They contend that the allegations of plaintiff's petition show that the account sued on is a community debt, for which only Mr. Morris, as head and master, is responsible and that, under the law, Mrs. Morris could not become personally liable, unless she had specifically agreed to pay this community debt, under the provisions of Act No. 283 of 1928. We find it unnecessary to pass upon this exception for the reason that the evidence plainly shows that the credit extended by the plaintiff was not to Mrs. Morris, but to the community of acquets and gains existing between her husband and herself and for which her husband alone is responsible.

Counsel for plaintiff contend that, under Act No. 132 of 1926, as amended by Act No. 283 of 1928, a married woman has the right to bind her personal estate for the debts of the community and that, for this reason, Mrs. Morris is liable in solido with her husband on the account in suit. This statute, as interpreted by the Supreme Court in United Life & Accident Ins. Co. v. Haley et ux., 178 La. 63, 150 So. 833, has been held to mean that a married woman can, by contract, bind herself personally with her husband for the payment of a community debt. Therefore, the point presented for our determination is whether or not Mrs. Morris actually bound herself personally with her husband for payment of the merchandise bought from the plaintiff. This is solely a question of fact. In Wilson & Gandy v. Cummings (La.App. Second Circuit), 150 So. 436, it was held 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 to become personally responsible, and in Alpha v. Aucoin (La.App.) 167 So. 835, the ruling in Wilson & Gandy v. Cummings, was approved and followed by this court.

An examination of the evidence submitted at the trial not only reveals that Mrs. Morris did not intend to become personally responsible to plaintiff, but the testimony of Mr. J. A Smith, credit manager of plaintiff, plainly exhibits that the credit was not extended to her but to the community of acquets and gains. When Mr. Smith was questioned regarding the status of the charge account in the name of Mrs. Morris, he asserted that the plaintiff looked to Mr. Morris for payment of the account. Mrs. Morris...