Charles Lob's Sons, Ltd. v. Karnofsky , 144 So. 164 ( 1932 )

JANVIER, J.

Plaintiff corporation, alleging that it sold and delivered certain merchandise to Mrs. Karnofsky, prays for a judgment for the unpaid balance due thereon not only against the said Mrs. Karnofsky, but also solidarily against her husband.

It is contended that there is a community of property between the said husband and the said wife; that the wife is engaged in business as a public merchant; and that for these reasons, although the said husband was not interested in the said business, his liability solidarily with his wife results from article 131 of the Civil Code. The pertinent part of this article reads as follows:

“If the wife is a public merchant, she may, without being empowered by her husband, obligate herself in anything relating to her trade; and, in such case, her husband is bound also, if there exists a community of property between them.”

Mrs. Karnofsky made no defense and has not appealed from the judgment which was rendered in accordance with the prayer of the petition, but her husband resists plaintiff’s demand and has appealed.

We shall hereafter refer to Mr. Karnofsky as “defendant,” since he is the only party defendant with whom we are now concerned.

Complying with the prescribed practice in the First city court of New Orleans, defendant filed at the same time exceptions and an answer ; the exceptions being of misjoinder and of no cause of action based on the contention that, since defendant had not authorized the purchases which his wife had made and which . form the basis of the suit, he was improperly joined as a party defendant.

In the answer defendant interposes two contentions, either of which, he maintains, is sufficient to prevent his being held liable. He asserts, in the first pfiace, that his wife is not a “public merchant,” but is engaged in the tailoring business, and, in the' second place, that, even if his wife’s business be such as may be classified as that of a “public merchant,” the said business is not conducted individually by her, but by a partnership composed of her son and herself, and known as “The Model Tailors.”

On the Exceptions.

If the allegations of the petition be true, there is a cause of action stated under which defendant may, under the codal provision quoted, be held liable solidarily with his wife. The exceptions are not based on the charge that the petition does not contain allegations sufficient, if true, to show liability, but rather are they founded on the assertion that those allegations are untrue. The truth or falsity of allegations contained in a petition is not properly put at issue by exceptions, for, when considering the exceptions, it is to be assumed that the allegations are true.

The exceptions are not well founded and were properly overruled.