Winter v. Gani

• Decision Date: 14 January 1941
• Docket Number: 2191
• Citation: 199 So. 600
• Court: Court of Appeal of Louisiana — District of US
• Parties: WINTER v. GANI

199 So. 600

WINTER v. GANI

No. 2191

Court of Appeal of Louisiana, First Circuit.

January 14, 1941

Robt. R. Stone, of Lake Charles, for appellant.

Plauche & Plauche, of Lake Charles, for appellee.

OPINION

OTT Judge.

The suit is to recover the balance on an open account for goods and merchandise sold by the F. C. Winter Mercantile Company to the defendant between December 1, 1928, and December 2 1932. It is admitted that the plaintiff has the right to prosecute the suit in the capacity in which she has brought it and that she has succeeded to all the rights of the mercantile company as the original creditor. The account filed in the record gives an itemized statement of all purchases and credits made by the defendant, showing a balance of $ 276.21, including interest on the account. The last admitted payment on the account was made on July 5 1933. The suit was filed in August, 1937, and the account is prescribed unless a credit of $ 3.05 alleged to have been made on July 2, 1935, had the effect of interrupting prescription.

The defendant pleaded the prescription of three years and alleged that the credit of $ 3.05 shown on the statement of account as having been made on July 2, 1935, was not made by him, nor did he authorize any one to make any such payment for him. The sole question presented is whether or not the plea of prescription is well founded. Other than this credit of $ 3.05, the defendant does not dispute the correctness of the account.

The trial court overruled the plea of prescription and rendered judgment against the defendant for $ 206.39, with interest thereon in the sum of $ 66.77, with 5% interest on said principal from judicial demand. The case is here on a devolutive appeal taken from this judgment by the defendant.

It appears that a short time after the defendant incurred the indebtedness sued on, he discontinued the business which he was operating when the debt was incurred. In 1934, his wife started up a business of her own and in her name. As a part of that business, she sold fireworks. On July 2, 1935, Jack Winter, a 14 year old boy, son of Mr. F. C. Winter who was the owner and operator of the mercantile company which had sold the goods to defendant, went to the store operated by Mrs. Gani and purchased fireworks amounting to $ 3.05 for which he was given a charge slip. Mr. Winter died in 1937, just before this suit was filed.

Young Winter testified that he purchased these fireworks from Mrs. Gani at the suggestion of his father who was living at that time and that the purchase was to be applied as a credit on the old account which the defendant owed the Winter Mercantile Company; that he gave the slip to Miss Waite, the bookkeeper of the mercantile company; that he asked Mrs. Gani if he could get the fireworks and charge them to the old account which her husband owed his father and she assented to this; that the defendant was not present at the time and knew nothing of this purchase and the agreement to charge it to the old account.

Miss Waite testified that she was the bookkeeper for the Winter Mercantile Company in 1935 when Jack Winter got permission from his father to buy these fireworks from Mrs. Gani; that he went and purchased the fireworks and gave her the slip; that she did not credit defendant's account with this item in the ledger for the reason that this account had been charged to profit and loss; that she carried the slip in her books as part of the company records, but did not enter it as a credit on the account; that she had the slip when she prepared the statement of account, but does not know what finally became of it and the slip was not produced on the trial.

Mrs. Gani admits selling Jack Winter the fireworks and that she gave him a charge slip for same, but she denies that she agreed that this item was to be credited on her husband's old account, or that anything was mentioned about this old account. The defendant also denies that he knew anything about the purchase of these fireworks from his wife by young Winter, or that any credit therefor was to be made on his old account.

The city judge made the following finding on this point:

"Passing now to the question as to whether or not there was an acknowledgment of the account by the alleged credit transaction dated July 2, 1935, which credit was in the sum of Three & 05/100 ($ 3.05) Dollars, the Court is of the opinion that Jack Winter, as he testified, purchased some firecrackers from Mrs. Robert Gani, who at that time was operating a business of her own, separate and apart from her husband. The Court is further of the opinion from the testimony that Mrs. Robert Gani gave young Jack Winter the firecrackers and charged the debt to the old account of her husband, Robert Gani. The Court is impressed on that point by the testimony of Jack Winter and Miss Waite and this fact although vaguely denied by Mrs. Robert Gani is substantiated by her own testimony. The evidence reveals that Mr. & Mrs. Robert Gani were at the time of this transaction and are now living together as husband and wife and there existed at that time a community of property between them."

The judge then proceeded to hold that, as Mrs. Gani was a public merchant, her husband was liable for her debts, and as she could thus bind her husband for the obligations incurred by her in her business, she could likewise bind him by acknowledging his debt so as to interrupt prescription thereon. He cites Article 131 of the Civil Code and Charles Lob's Sons, Ltd., v. Karnofsky et al., 177...