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Dunham''s v. Dzurinko

Decided: October 18, 1973.

S.P. DUNHAM'S AND CO., PLAINTIFF-APPELLANT,
v.
VIRGINIA DZURINKO, DEFENDANT-RESPONDENT, AND RONALD OWEN DZURINKO, DEFENDANT



Conford, Handler and Meanor. The opinion of the court was delivered by Meanor, J.A.D.

Meanor

[125 NJSuper Page 297] Plaintiff Dunham's appeals from a judgment of involuntary dismissal entered at the close of the

proofs after jury trial. The case was tried as to Virginia Dzurinko only, default judgment having previously been entered against the co-defendant, her estranged husband.

Early in June 1968 defendants received charge cards issued by Dunham's. Defendant husband, Ronald, had applied for credit, and the credit application upon which the cards were issued purports to bear the signatures of both Ronald and Virginia Dzurinko. Virginia denied having signed the application, and the trial judge, in dismissing the case, held that reasonable men could not conclude that she had. This ruling is not contested. The inference is that Ronald either signed his wife's name or had someone else do it.

Both defendants began to use the account, and the balance at time of trial was said to be $1,076.07, which apparently included service charges and attorney's fees. Defendants separated in April, 1969.

On May 16, 1969 Virginia was coincidentally an employee of plaintiff, whose credit manager had by that time learned of her separation from Ronald. He called Virginia into his office where she signed a new credit application in her own name alone, and also a document entitled "Transfer of Account." The asserted effect of these documents is an assumption by Virginia individually of the outstanding balance owed on the account opened by Ronald. The credit manager would have it that Virginia voluntarily assumed an obligation to pay the balance by signing these documents. Virginia's position is that she was coerced into signing by threat of job loss.

On either June 1 or 2, 1969 Virginia made charges of $17.62, using the charge card that had been delivered a year previous. She had been given no new charge card following the May 16, 1969 application. On June 2, 1969 Dunham's credit manager asked Virginia to surrender her credit card, which she did. The testimony of plaintiff's credit manager

is explicit that as of May 16, 1969 and thereafter he did not intend to extend further credit to Virginia until the previous balance had been paid in full.

In dismissing the complaint the trial judge held that indisputably Virginia did not sign the original credit application. As we have noted, plaintiff acquiesces in this determination. Thus, she was not bound by the contents thereof which purported to make each spouse jointly liable for all purchases on the account. Next he held, since Virginia had no liability for the antecedent debt, her assumption of that debt on May 16, 1969 was without consideration and unenforceable. He rejected the suggestion that the consideration for this assumption on her part was extension of future credit because of the unequivocal testimony of the credit manager that there was no intention to extend such credit until the old balance had been paid.

Since Virginia incurred no express liability on the credit contract, her exposure is to be tested by common law principles. At common law a wife, in the purchase of what has been called necessaries, is presumed to be acting as agent for her husband, and as agent for a disclosed principal she incurs no personal liability on the contract of purchase unless the credit was extended to her individually or she expressly contracted to be liable. Wilson v. Herbert, 41 N.J.L. 454, 461 (Sup. Ct. 1879); Feiner v. Boynton, 73 N.J.L. 136 (Sup. Ct. 1905); Mooney v. McMahon, 83 N.J.L. 120 (Sup. Ct. 1912); Smedley v. Sweeten, 11 N.J. Super. 39 (App. Div. 1950); Saks & Co. v. Bennett, 12 N.J. Super. 316 (App. Div. 1951).

There was no evidence in the case to overcome the common law presumption. Under the cases cited above, however, Virginia would remain liable for items, not necessaries, purchased by her.

We agree with the trial court's rejection of the transfer of account and asserted assumption ...


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