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R.J. Goerke Co. v. Nicolson

Decided: November 23, 1949.

R.J. GOERKE CO., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
FLORENCE NICOLSON, DEFENDANT-APPELLANT



Jacobs, Donges and Bigelow. The opinion of the court was delivered by Donges, J.A.D.

Donges

This is an appeal from an order of the Union County District Court denying appellant's application to set aside a judgment against defendant and in favor of plaintiff.

On November 5, 1946, appellant made personal application to respondent's credit manager, Mary Zack, to open a charge account. The appellant furnished credit data to the said credit manager, which data was incorporated in a printed application. The application contained the further provision that the applicant expressly represents that she is of full legal age, etc. The application was signed by Florence R. Nicolson, the appellant, and was witnessed by Mary Zack.

Between November 15, 1946, and November 27, 1946, there were charges to this account in the sum of $493.15. A credit

of $100 was made on January 8, 1947, leaving a balance of $393.15.

Suit was instituted against the appellant on March 22, 1947, and she was personally served with summons on that day. Appellant did not appear on the return day, March 28, 1947, and the case was marked "no appearance." On April 1, 1947, a judgment was entered in favor of respondent and against appellant. Subsequently, the appellant's salary was garnisheed with her employer.

On or about February 1, 1949, the court below reopened the judgment for the purpose of taking testimony as to whether the judgment should be set aside. The court permitted the entire case to be tried on the merits, and appointed one Stewart Cooley as guardian for the appellant.

Appellant asserted that she was an infant at the time the purchases were made, and that she did not recall being asked if she was of full age or of having read the provision concerning age in the application.

Mary Zack, the credit manager, testified that she asked appellant if she was of full age and received an affirmative reply. She also stated that she read the provision relating to age to the appellant and that appellant looked like she was of legal age.

At the conclusion of the hearing, the judge concluded that the appellant was estopped from setting up the plea of infancy. On February 16, 1949, an order was entered denying the application to reopen the judgment.

Appellant contends that the judgment should be reversed because a guardian was not appointed when the ...


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