
    D. H. HOLMES CO., Limited, v. TERRY.
    No. 19909.
    Court of Appeal of Louisiana. Orleans.
    May 26, 1952.
    
      C. L. Stiffell and Carroll Montet, New Orleans, for appellant.
    George Fisher, New Orleans, for appel-lee.
   REGAN, Judge.

Plaintiff, D. H. Holmes Company, Ltd., instituted this suit, on an open account, against defendant, C. Gordon Terry, endeavoring to recover the sum of $162.62 for merchandise which consisted of household linens, male and female wearing apparel sold, charged and delivered between the dates of May 25 and June 13, 1950, in the name of Mrs. C. Gordon Terry, under the assumption that the Terrys were man and wife.

Defendant answered and generally denied that he was indebted unto plaintiff.

The court, a qua, rendered judgment in favor of plaintiff in the amount of $40.-56, apparently based on the fact that since defendant had the use of this much of the merchandise he should be obligated to pay only for that portion thereof. From that judgment plaintiff has prosecuted this appeal. Defendant has answered the appeal requesting that the judgment be reversed.

The record reflects that defendant and Mrs. Rosalie Rita Moore, on March 22nd, 1950, rented a furnished apartment in No. 2431 Milan Street from the lessor, Miss Regina Kristal, in the names of Mr. and Mrs.- C. Gordon Terry, which1 they continued to occupy as man and wife until sometime in June, 1950, although they had never married.

Subsequently they moved to 5010 Freret Street where they were likewise known by the lessor and neighbors as man and wife. Mrs. Moore stated that the defendant, at all times during the continuation of this relationship which ended in August, 1950, endeavored to publicly establish her as his wife.

Mrs. Moore testified that between March 22, and June, 1950, defendant authorized her to open an account with plaintiff and, in conformity therewith, she, with his permission, furnished plaintiff with defendant’s name, occupation and business address and, when these facts had'been properly verified, to confirm defendant’s credit, plaintiff opened the account and she purchased the merchandise which is the subject of this litigation. Defendant, although present in court during the testimony of Mrs. Moore, never attempted to rebut her statements nor did he testify in his own behalf.

Plaintiff’s assistant collection manager stated that the account which was opened in the name of Mrs. C. Gordon Terry Was based on the credit rating of defendant:

Plaintiff contends that marriage is presumed when a man and woman have the general reputation, in the community, of being husband and wife and live together as such, therefore, defendant is liable for Mrs. Moore’s “necessities of life” as though they had actually been man and wife.

Defendant, on the other hand, maintains that there exists no legal obligation on his part to provide Mrs. Moore with the “necessities of life” or to support Mrs. Moore in the absence of marriage.

Obiviously the facts and the respective contentions of the litigants pose an interesting legal question which we do not need to decide in order to hold defendant liable for the monetary value of the merchandise purchased from plaintiff.

The testimony elicited from Mrs. Moore stands uncontradicted in the record to the effect that defendant authorized and permitted her to open this account and to use his name and credit to obtain the merchandise from plaintiff. These facts reflect, in the ultimate, that Mrs. Moore was, in reality, acting in the capacity of defendant’s agent in procuring household linens, male and female wearing apparel from plaintiff which, in the final analysis, was in furtherance of the interests of the relationship which they had mutually created and, accordingly, he is liable as principal for the full amount of the merchandise so purchased from plaintiff.

For the reasons assigned the judgment appealed from is amended by increasing the amount awarded plaintiff from $40.56 to $162.62, and as thus amended it is affirmed.

Amended and affirmed.

McBRIDE, Judge.

I concur in the decree. I do not believe it should be said that Rosalie Rita Moore was the agent for Terry, for if it is to be so said, she would be placed in the same position as though she was his lawful wife.

When Rosalie Rita Moore and Terry agreed between themselves that the former would apply to the plaintiff for a credit account based upon the misrepresentation that she was the lawful wife of Terry, and they followed up this design by obtaining valuable merchandise from the plaintiff through the misrepresentation, their actions amounted to fraud and were tortious, and I believe that under the law both can be held solidarily liable to the vendor for the value of its merchandise delivered to them.

If it is to be said that judgment is to go against Terry on the theory that Rosalie Rita Moore was his agent, then in her role as Terry’s agent Rosalie Rita Moore might possibly not be responsible for the debt to plaintiff, for it is my understanding of the law that an agent who discloses his principal, and does not engage his own credit, is not personally liable to the other party.

Rosalie Rita Moore is not a defendant here, but it may be that the plaintiff will ultimately bring its suit against her. I do not think that the right of the plaintiff to recover from her should be jeopardized by any holding that she was Terry’s agent.

My thought is that Terry should be cast for the amount sued for, for the reason that he was a party to a fraud perpetrated on the plaintiff, which caused a loss to plaintiff in the amount sued for. There is no question in my mind that when Rosalie Rita Moore assumed a false status for the purpose of obtaining plaintiff’s merchandise, all with the authorization and active participation of Terry, she and Terry were both guilty of a fraud, and both are liable solidarily for the plaintiff’s loss. I am satisfied in my own mind that if Rosalie Rita Moore had disclosed the true relationship existing between herself and Terry, the credit would never have been extended. The credit was therefore obtained, and extended, upon misrepresentations, and this in the eyes of the law constitutes fraud on the part of Terry and his concubine. True, fraud is not alleged in the petition, but the evidence produced by plaintiff enlarged the pleadings, and the fraud is evident.  