Wilson & Gandy, Inc. v. Cummings
| Decision Date | 03 November 1933 |
| Docket Number | 4599 |
| Parties | WILSON & GANDY, INC., v. CUMMINGS ET UX |
| Court | Court of Appeal of Louisiana — District of US |
T Overton Brooks, of Shreveport, for appellant.
Wallace & Hardeman, of Benton, for appellee.
Plaintiff sued J. L. Cummings and wife on open account for groceries and other merchandise presumably for the use of their household. Cummings made a surrender in bankruptcy and no further action was taken against him. Mrs. Cummings did not answer. Judgment by default was entered against her and was in due course confirmed. She prosecutes appeal therefrom.
There is no note of evidence in the record. No statement of facts from the trial court was secured before taking appeal. The judgment is for the amount of the account sued on and contains the customary declaration that due proof was adduced in support of plaintiff's demand, and that "the law and evidence" was in favor of the judgment rendered.
It is alleged in the petition that plaintiff sold and delivered to the defendants the goods and merchandise charged on the itemized account attached to and made part thereof. However the account is charged to J. L. Cummings only. That the account sued on is a community obligation, and that the community of acquets and gains existed between these defendants, is conceded by both sides in briefs. Anyway, the legal community between married persons is always presumed. Civ. Code, art. 2399.
It is reasonable to assume that as plaintiff seeks to hold Mrs. Cummings personally responsible for the account because, as alleged, the goods and merchandise charged therein were sold jointly to her and her husband, that the account was the only evidence introduced to support plaintiff's demand.
The questions, therefore, arise:
(1) May a wife be held responsible for the debts of the community even if she has bound herself therefor? And,
(2) If she can so bind herself, are the allegations of plaintiff's petition sufficiently definite to admit testimony to establish the facts necessary to adjudge Mrs. Cummings liable for the account sued on?
Prior to the adoption of Act No. 94 of 1916, the wife's inability to bind herself for the debts of her husband and of the community of acquets and gains between them was complete. This act to a great extent removed the ban against her freedom to contract and obligate herself. The scope of the act in some respects was enlarged by the amendment of 1918 (Act No. 244). Then came Act No. 132 of 1926 and Act No. 283 of 1928, to emancipate married women from all the disabilities and to relieve them from all the incapacities to which, as such, they were subject. Under the provisions of these two acts, a married woman may bind herself for her husband's debt, and, it was held in Mathews Bros. v. Bernius, 169 La. 1069, 126 So. 556, that by implication, this law invested her with the right to bind herself for a community debt, which, primarily, is an obligation of the husband.
In view of the recent expressions of the legislative will, and the holding of the court in the case cited above, it appears clear that Mrs. Cummings could have validly bound herself for the payment of the account due plaintiff. Whether she has done so, and whether the record, even by implication, discloses that she has done so, are different questions. To justify us in holding that Mrs. Cummings agreed to bind herself personally, and her separate estate, if any she has, for the payment of this community obligation, the proof of her intention and purpose to do so should be clear and convincing.
Plaintiff relies upon the presumption that evidence to support and justify the lower court's judgment must have been offered and received when the case was tried. This presumption is well recognized and has been applied in many cases, but it finds no application in a case proved up on default, when it is not shown that defendant...
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