No. 6751 | La. | May 15, 1881
The opinion of the Court was delivered by
Plaintiff sues for $1140 with interest, alleged to have been deposited by him with the defendants, out of his earnings from 1859 to 1868, for safe-keeping and subject to the obligation of returning the same.
We gather from the evidence that plaintiff, left an orphan at the age of thirteen, was taken charge of by defendants and received, as a member, into their family. In 1859, at the age of about seventeen years, he found occupation as a railroad employee, and, with the exception of three years during the war, was so engaged, though still considering the house of defendants as his home, until 1868, when he married and their relations ceased. He earned wages, increasing gradually, from $50 to $140 per month. Under the advice of Mrs. Kelsey, he deposited with her the surplus of Ms earnings above necessary expenses to be laid up, as she suggested, “ for a rainy day.” The evidence satisfies us that the amounts so deposited with her certainly aggregated as much as the sum claimed; and as the answer is a general denial and no offsets are pleaded or claimed, the liability to that extent must be taken as established, unless there are legal defenses to the demand. The suit was originally against the husband and wife in solido, but was dismissed as against the wife, and is now urged against the husband alone as a community debt. The defenses are threefold, viz:
1st. The prescriptions of three and five years. Evidently they do not apply to this claim, which is not a loan but an irregular deposit, and
2d. That the claim being based on an alleged contract with a minor, cannot be enforced. This objection is only available to the minor and not to the person dealing with him. Rev, O. C. 1791.
3d. That judgment cannot be recovered against the husband as ■head of the community, because the dealing was with the wife alone. The evidence is clear that the husband was cognizant of the dealing, knew that his wife was receiving plaintiff’s money and made no objection to it. This is equivalent to authorization. The money is presumed to have enured to the benefit of the community, and there is no countervailing proof or suggestion. It was a debt contracted during the marriage and must be acquitted out of the community fund. Rev. C. C. 2403. See, also, Chaix vs. Villejoin, 7 La. 277; Scanlan vs. Warwick, 10 An. 30.
We are not altogether favorably impressed by this claim. Its staleness is not satisfactorily explained, and we are at a loss to understand why the offsets, which might have been justly claimed by defendant, ■were not pleaded.
But on the case as presented by the pleadings and evidence, the law undoubtedly entitles plaintiff to a judgment; and although the judge • a quo thought otherwise, he favors us with no reasons for his opinion, . and it is certainly not sustained by the law and evidence.
It is, therefore, ordered, adjudged and decreed that the judgment • appealed from be reversed, and it is now decreed that plaintiff have judgment against the defendant, H. L. Kelsey, for the sum of eleven hundred and forty dollars with legal interest thereon from judicial dei mand and with costs in both courts.
Rehearing refused.