On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
King, Shebell and Keefe. The opinion of the court was delivered by King, P.J.A.D.
[242 NJSuper Page 99] This is an appeal from a judgment of $925.25 entered in the Small Claims Division of the Special Civil Part in favor of the operator of a hardware store. The judgment was entered after a contested hearing in which defendant Karen Lyn Horton disputed that she was responsible for certain purchases made on her credit card by her acquaintance, Daniel Calvin, who had not been served and did not appear. The issue is whether
Horton is legally responsible under common-law agency principles to Blaisdell Lumber Company, the owner of the hardware store. We conclude that she is not.
Plaintiff brought this action in April 1989 to recover payment for purchases made at its hardware store with defendant Karen Horton's American Express (AMEX) credit card in June and July 1987. Defendant alleged that her former male friend, Daniel Calvin, made the purchases without her permission or authority. She said that he was never permitted to use her AMEX card but stole it from her.
Bruce Blaisdell, vice-president of Blaisdell Lumber Company of Red Bank, testified that seven transactions, resulting in AMEX credit card charges totalling $925.25, were made at his store from June 18 to July 18, 1987. He handled the first transaction personally on June 18. He was the only witness for plaintiff. He said that during the June 18 transaction Calvin signed only his name on the two charge slips for that date after "a woman" handed the credit card to Calvin. Only Karen Horton's name and signature appeared on the credit card itself. Blaisdell did not ask the woman either to sign the charge slips or to identify herself. At trial Blaisdell could not identify defendant Horton as the woman with Calvin on the day of the first purchase. The other six purchases were made by Calvin from other clerks in the hardware store on separate dates continuing through July 18, 1987. There was no proof offered at trial concerning the circumstances surrounding those purchases other than the credit card slips also signed by Calvin only in his own name.
Blaisdell said that in August 1987 American Express refused to reimburse Blaisdell Lumber because Horton had "denied the signature" in early August by notifying AMEX that it was not her signature on the card slips. Blaisdell then telephoned Horton. He claimed that she said that the signature was not valid, that she had never reported her card stolen, and that "the bill" was Daniel Calvin's. Blaisdell testified that Horton also
said that Calvin was out but that he would return soon and call him, suggesting to Blaisdell that the two were still living together. At the close of plaintiff's case, the defendant's motion to dismiss for failure to prove agency was denied.
Karen Horton then testified. She said that she had first met Daniel Calvin around Christmas 1986. He had moved into her apartment in Long Branch in January 1987. She testified that their "romance" abruptly ended in early March 1987 when Calvin stole her car, changed the bill of sale to his name, and drove off to Mississippi. At that time, on March 4, 1987, Horton signed a complaint in the Long Branch Municipal Court alleging that Calvin had stolen her car, a gasoline credit card, a brief case, and had obtained $4,000 from her by misrepresentation.
Calvin soon returned to Horton's New Jersey apartment and continued living there, although not on the same friendly and "romantic" terms as before. On August 11, 1987 Calvin pled guilty in the Long Branch Municipal Court to the offenses involving the March thefts. He was fined, received a suspended sentence and was ordered to make restitution.
Horton testified that in August 1987 she was at a gas station and realized that she could not pay for her gas as she was unable to find her AMEX card in her wallet. The attendant who knew Horton then told her that he had seen Calvin with the credit card that morning. Horton said that she immediately called AMEX and reported her card missing. She did not know for how long it had been gone. She said that a Ms. Douglas of AMEX's fraud control department told her and confirmed in writing that the balance due was $5,496 of which only $218 was Horton's legitimate charges. See Evid.R. 2(2). An AMEX memo to Horton, dated August 13, 1987, placed in evidence, ...