177 So. 417 | La. | 1937
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *433 This is a suit on an open account, for purchases made by a married woman in her own name, without her husband's knowledge, and while she was living separate and apart from him. The amount of the bill is only $274.05. One item on the account is a diamond wrist watch, $150, and another item is a watch band, $100. The other items, being five in number, and amounting to only $24.05, are for clothing, $22.90, and two lunches, $1.15. The plaintiff asked for a judgment against the husband and wife, in solido, for the $274.05. The judge of the city court gave judgment *434 against the husband, H.H. Morris, for the $274.05, but dismissed the suit against Mrs. Morris. Mr. Morris appealed from the decision, to the Court of Appeal, and the plaintiff appealed from that part of the decision which dismissed the suit against Mrs. Morris. The Court of Appeal decided that Mr. Morris was not obliged to furnish or pay for the wrist watch or the watch band, but was obliged to pay for the clothes and the two lunches. Hence the Court of Appeal reduced the amount of the judgment against Mr. Morris to $24.05, and affirmed the judgment dismissing the suit against Mrs. Morris. D.H. Holmes Co. v. Van Ryper, 173 So. 584. A writ of review was granted on the petition of the plaintiff, D.H. Holmes Company.
The question of liability of Mr. Morris for the wearing apparel and the two lunches which Mrs. Morris bought and had charged to her own account, amounting to $24.05, has passed out of the case, because Mr. Morris did not ask for a review of the judgment which the Court of Appeal rendered against him for the $24.05, affirming to that extent the judgment of the city court. Where a writ of certiorari or review is granted at the instance of one of the parties to a suit, to consider a complaint of a judgment of the Court of Appeal, under the provisions of section 11 of article 7 of the Constitution, and of Act No. 191 of 1898, carrying out the provisions of article 101 of the Constitution of 1898, an opposing party to the suit, who has not applied for a writ of review, cannot have the judgment amended *435
for his benefit. In such cases the judgment of this court will be confined to the complaint or complaints of the party or parties at whose instance the writ of review was granted. Ware v. Couvillion,
The Court of Appeal, in determining the question of liability of the husband for the debt incurred by his wife, drew a distinction between the articles of clothing and the lunches, amounting to $24.05, for the payment of which the husband was held liable, and the diamond wrist watch and the wrist band, amounting to $250 for the payment of which the husband was not liable. The court held that the indebtedness of $24.05 which the wife incurred for clothing and lunches came within the provision in article 120 of the Civil Code, that the husband is obliged to furnish the wife "with whatever is required for the convenience of life, in proportion to his means and condition." At the same time the court held that the wrist watch and wrist band were luxuries, which the husband was not obliged to furnish or pay for.
As we have said, the judgment against Mr. Morris for the price of the clothing and lunches, amounting to $24.05, has become final, and it may have been paid, as far as the record shows. We shall avoid, therefore, an expression of opinion, not only as to whether the judgment *436
is correct in that respect, but also as to whether a judgment for those items on the account should have gone against both the husband and wife, in solido. In fact, the only purpose for which the writ of review was granted in this case was to consider and decide whether the plaintiff should have judgment against Mrs. Morris for the price of the wrist watch and the wrist band bought by her. We did not doubt that the judgment of the Court of Appeal was correct in declaring that Mr. Morris was not liable for the price of either the wrist watch or the wrist band, bought by his wife. The only law on which the plaintiff bases the suit against Mr. Morris is the declaration in article 120 of the Civil Code, that the husband is obliged to receive the wife "and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition." Accordingly, it was said in the case of Van Horn v. Arantes,
"This rule compels the husband to pay in a proper case, and at the same time affords him some protection against the extravagance of a wife in purchasing what she does not need. Wanamaker v. Weaver,
In a very recent case, Adams v. Golson and wife,
"The wife is without authority to contract a debt that will bind the community during its existence, not even for the necessary supplies for herself which her husband is required to furnish, except and unless he himself fails or refuses to do so. Schaeffer v. Trascher,
Although we find that Mr. Morris is not obliged to pay for the watch and wrist band which his wife bought, we see no good reason why she should not be obliged to pay for them. By Act No. 132 of 1926, and again by Act No. 283 of 1928, married women were declared fully emancipated *439
and relieved of all of the incapacities to which, as such, they were theretofore subject, and were empowered to enter into contracts and obligations of all kinds, without the authority of the husband or of the judge. The only limitation in either of these statutes, in that respect, was and is that nothing therein shall modify or affect the matrimonial community; that is to say, that the husband is yet the head and master of the matrimonial community, and that a contract made by the wife alone cannot impose an obligation upon the community, except, perhaps, to the extent permitted by article 120 of the Civil Code, as construed in Van Horn v. Arantes, supra, and in Schaeffer v. Trascher, supra. In United Life Accident Insurance Co. v. Haley,
"The act [No. 132] of 1926 was superseded by Act No. 283 of 1928, which uses stronger and plainer language — and possibly goes further — in the emancipating of married women." *440
The Court of Appeal came to the conclusion that, inasmuch as Mrs. Morris was not living with her husband, and in fact had been living separate and apart from him for a year, when she bought the watch and wrist band, "she made the purchase either with the intent of embarrassing him, or for the purpose of indulging in a luxury far in excess of her actual needs." D.H. Holmes Co. v. Van Ryper, 173 So. 584, 586. Nevertheless, the court held that, as Mrs. Morris bought these articles in the belief that her husband alone would be liable for the debt, and without any intention of binding herself for the debt, she was not liable for the debt. And in this connection the court cited the decision, by the Court of Appeal for the Second Circuit, in Wilson Gandy v. Cummings and wife, 150 So. 436, 437, to the effect that a married woman could not be held liable personally for a debt of the matrimonial community unless there was clear and convincing proof that she had entered into a contract with the intention of being liable personally for the debt. In that case, however, the court observed that the debt for which Mrs. Cummings was being sued, and which was represented by an open account, was "a community obligation charged to her husband only, knowing that she was not primarily responsible for its payment, and further knowing, we assume, that she had not bound or committed herself to its payment," etc. In the present case, the account sued on stood in the name of Mrs. H.H. Morris. She opened the account in her maiden name, two years and nine months before she *441 was married; and she alone requested the D.H. Holmes Company to change the name in which the account was carried, to "Mrs. H.H. Morris," two months after she was married. There was no change, however, as to the person or individual who kept the account with the D.H. Holmes Company. The account was small; the largest amount of purchases in any one month previous to the purchases in contest in this suit being less than $30; but the bills were always paid promptly, and hence the account was very satisfactory to the D.H. Holmes Company. The last purchases made previous to the purchases now in contest were made a year and eight months previous thereto, and amounted to only $16.20. The amount was paid by a check of H.H. Morris; but that was before he and his wife were separated. It is not unlikely that Mrs. Morris believed that her husband would be obliged to pay the bill of $250 for the watch and wrist band, and hence that she would not have to pay for them; but there was no express or implied promise on the part of the husband to pay for any such unusual purchase on the part of his wife; especially when he and she had been put asunder. Mr. Morris was not a rich man. He was drawing a large salary at the time of his marriage, but lost his position seven months afterwards, three years before Mrs. Morris bought the watch and wrist band. At that time his salary was only $85 a month, and his net worth about $5,000. These facts, however, are not important, beside the proposition that ignorance on the part of Mrs. Morris, of the law which *442 would oblige her to pay for the watch and wrist band, if in fact she was ignorant of the law on that subject, would not relieve her of the obligation of her contract.
The attorney who represented Mrs. Morris in the city court withdrew, and other counsel appeared for her, when the case reached the Court of Appeal; and the newly-employed attorneys filed an exception of no cause or right of action, as far as Mrs. Morris was concerned. The exception was founded upon the allegation in the plaintiff's petition that the debt sued for was a debt of the matrimonial community. The Court of Appeal found it unnecessary to pass upon the exception of no cause or right of action, because the court found that the evidence showed that the credit was extended by the D.H. Holmes Company not to Mrs. Morris, but to the matrimonial community. The exception of no cause or right of action was not well founded, because the plaintiff set forth in the petition all of the facts with reference to the purchases being made by Mrs. Morris in her own name; hence the allegation that the debt was a debt of the community was not an allegation of fact, but a mere conclusion of law, on which the plaintiff sought to hold Mr. Morris liable for the debt. The plaintiff did not, by that allegation, concede that Mrs. Morris was not liable for the debt, but, on the contrary, insisted that she was liable, in solido with her husband, for having contracted the debt. A litigant is estopped or bound by his allegations of fact made in his pleadings, but not by allegations which *443 are mere pronouncements of propositions of law.
The plaintiff prayed for a decree recognizing the vendor's lien on the wrist watch and wrist band, and would be entitled to such a decree if the articles were yet in the possession of Mrs. Morris. Rev.Civ. Code, art.
HIGGINS, J., takes no part. *444
