Green v. First Nat. Bank of Tuskaloosa

• Decision Date: 23 June 1971
• Docket Number: 6 Div. 93
• Citation: 272 So.2d 895,49 Ala.App. 426
• Parties: Susie GREEN v. FIRST NATIONAL BANK OF TUSKALOOSA, d/b/a First Charge Service.
• Court: Alabama Court of Civil Appeals

Page 895

272 So.2d 895

49 Ala.App. 426

Susie GREEN v. FIRST NATIONAL BANK OF TUSKALOOSA, d/b/a First Charge Service.

6 Div. 93.

Court of Civil Appeals of Alabama.

June 23, 1971.

Rehearing Denied July 28, 1971.

Maxwell Peters, Tuscaloosa, for appellant.

James A. Turner, Tuscaloosa, for appellee.

BRADLEY, Judge.

Susie Green, appellant, was sued on an open account by the First National Bank of Tuskaloosa, d/b/a First Charge Service, appellee, first in the Tuscaloosa County Court and then in the Circuit Court. The account was for $371.00 resulting from the use of a charge card issued by appellee. The case was tried before a jury in the Circuit Court and there was a verdict for appellee in the amount claimed. Motion for new trial was overruled and notice of appeal to this court was filed.

In 1967 appellee instituted a local charge account service for its customers. This service was called 'First Charge Service,' and was honored by about 400 Tuscaloosa merchants. Appellee, in instituting this service, issued charge cards to each person who had an account with the appellee. The appellant and her husband had a joint checking and joint savings account with the First National Bank of Tuskaloosa. The charge cards issued to appellant and her husband were not requested; they were mailed to them by the appellee without any application therefor.

The names imprinted on the cards were Stephen Green, Jr. and Mrs. Stephen Green, Jr.

The bank ledger sheets on which the various charges were recorded were in the names of 'stephen Green or Susie Green.' This ledger sheet was kept solely by the appellee, and appellant at no time had knowledge of the way her name appeared on this ledger sheet.

In the beginning the account, as evidenced by the billing statement, was in the name of 'Mr. and Mrs. Stephen Green, Jr.' The account was also represented by one number--40--119--even though two cards had been issued.

In July 1967, without any request from appellant or her husband, the name on the billing statement was changed by appellee to read, 'Stephen or Susie Green, Jr.' The number remained the same, and the bank ledger sheet remained the same.

Then in July 1968 the billing statement was again changed to read, 'Mr. Stephen Green, Jr.' The account number and bank ledger sheet remained unchanged. The billing statement was sent in the name of 'Mr. Stephen Green, Jr.' until the account was closed by appellee.

The record reflects that the various changes made in the billing statements were neither requested by the appellant nor her husband, and it does not appear that appellee communicated its reason for making these changes to appellant.

During the 22 months that appellant and her husband used the 'First Charge Service,' there was a total of $897.76 charged to said account, $453.59 being charged by appellant and $444.17 charged by her husband.

At the husband's death in 1969 the balance of the account was $371.00, which included a finance charge of one and one-half percent per month on the unpaid balance.

The charges made to this account by the appellant and her husband consisted of those items that a family of moderate means would purchase, such as food, clothing, auto repairs, gasoline and oil for the automobile, household goods and appliances, etc.

After the death of appellant's husband, appellee filed suit against appellant for the entire balance of theaccount--$371.00--which included the monthly finance charge.

Appellant made twelve assignments of error, but did not, in brief, insist on assignments eight through eleven, which we consider to have been waived. Supreme Court Rule 9.

Assignment of error one asserts that the trial court erred in overruling the motion for a new trial. One of the grounds of the motion for new trial was that the evidence failed to sustain the verdict of the jury.

This assignment of error requires us to examine the evidence to determine the nature of the charge account between appellee, the issuer of the charge card, and the appellant, the recipient of an unsolicited charge card. In other words, we are called on to decide what agreement or contract, if any, existed between appellee and appellant.

This same issue is raised by assignments of error three and four, wherein appellant says that the trial court erred in refusing to give the general affirmative charge with and without hypothesis.

The facts in this case are undisputed. Appellee issued, without being solicited, charge cards to its customers. Appellant and her husband had a joint checking account with First National Bank of Tuskaloosa prior to the issuance of the charge cards. Appellant was issued a card in the name of Mrs. Stephen Green, Jr. Appellant's husband was issued a card in his name. The two cards had the same account number imprinted on them. Appellee initially mailed billing statements to Mr. and Mrs. Stephen Green, Jr., addressed to the residence of appellant and her husband. Thereafter, appellee twice changed the name on these billing statements, once to Susie or Stephen Green, Jr., later to Mr. Stephen Green, Jr., which remained unchanged until his death. Appellant neither requested these changes, nor was she informed of the reason for them. Neither did appellant agree, either orally or in writing, to pay for purchases made by her deceased husband, or by herself for herself or her family. The record reflects that the purchase made with the charge card by appellant were for necessaries customarily used by a family.

Appellee says that appellant owes it the balance of the account in the amount of $371.00, apparently on the theory of a joint account, and regardless of whether the charges were made by the appellant or her husband.

Appellee apparently, by its brief, wants us to conclude that inasmuch as appellant purchased $453.59 worth of goods on the account and the balance is only $371.00, she still owes for the purchases she made. Of course this reasoning excludes any consideration of the husband's purchases, or the payments made on the account for the purchases of both over the life of the account. And, there was no evidence in the record that the $371.00 was for her purchases alone.

Appellee's contentions in brief as to the theory of the case are not borne out by the record, where it is clear that the case was presented to the jury on the basis of a joint account.

Appellant contends, however, that the account was her husband's and that she was merely given a card authorizing her to make purchases on her husband's credit; and this contention is certainly borne out by the testimony of appellee's only witness to the effect that the appellee considered the account to be the husband's, that it looked to him for payment, and that the wife was merely permitted to use the account by charging to the husband's credit.

Credit cards have existed as commercial instruments for many years, but the issuance of 'Bank Credit Cards' did not commence until late 1966 when member banks of the Midwest Bank Card system began to use them.

There are very few decided cases in this country on the subject, but there are numerous articles that have been written about bank credit cards. One of them will be found in The Banking Law Journal, Vol. 85, pp. 941--977, Nov. 1968. It is therein pointed out that the usual basis of a bank credit card plan is a tripartite arrangement involving: (1) an agreement between the issuing bank (appellee here), and the cardholder (appellant here); (2) an agreement between the issuer and the merchant-seller; and (3) a sales agreement between the cardholder and the merchant-seller.

The case at bar presents an interest only in the first agreement, i.e., the issuercardholder agreement.

Bank credit cards have been issued on a solicited and unsolicited basis. In the case at bar the charge cards were issued to the appellant and her husband on an unsolicited basis.

This state of the facts requires us to determine what type of agreement or contract existed between appellee and appellant.

In 17 Am.Jur.2d, Contracts, Sec. 298, page 716, there is found the statement:

'Two or more parties to a contract may bind themselves jointly, severally, or jointly and severally. The intention of the contracting parties, as revealed by the language of their contract and the subject matter to which it relates, determines whether a contract is joint or several; * * *'

In the case at bar there was no contractual language either in a separate agreement or imprinted on the charge card which would be available for use in attempting to discern the intention of the parties. Therefore, we must look at the facts contained in the record to ascertain said intention. The record reveals that appellant was issued a charge card in the name of Mrs. Stephen Green, Jr., and that the first few billing statements were in the name of Mr. and Mrs. Stephen Green, Jr., and for the last year of the account's existence, it was in the name of Mr. Stephen Green, Jr. In addition to this evidence there was testimony from appellee's only witness that the bank intended the account to be the husband's unless some other arrangement had been made. The testimony does not reveal any other arrangement was made by appellant or her husband.

We would point out also that it is the law in Alabama that a husband is under a common-law liability for necessary comforts and supplies furnished the wife, notwithstanding that the wife may, by statute, enter into contracts and be sued thereon. Anderson v. W. T. Grant Co., 45 Ala.App. 105, 226 So.2d 166, and Ponder v. D. W. Morris & Bros., 152 Ala. 531, 44 So. 651.

The evidence introduced on behalf of appellee showed that the bulk of the items purchased by appellant was in the category of necessities.

Appellee's evidence is also silent on the question of whether or not appellant had agreed to be responsible for the necessaries purchased for her family.

In the case of Loveman, Joseph & Loeb, Inc. v. Rogers, 39 Ala.App. 162, 96...