Walker v. Houghteling

[621] After the foregoing statement of the case, GROSSO UP, Circuit Judge, delivered the opinion of the court, as follows: Section 15, c. 68, Rev. St. Ill., is as follows: “The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” The section was adopted from a similar statute of the State of Iowa (section 2214, McClain’s Code, 1882), and has been interpreted by the Supreme Court of Illinois — following, in that respect, the Supreme Court of Iowa—as creating a primary right against husband and wife, or both, for family expenses incurred by either. Myers v. Field, 146 Ill 50, 34 N. E. 424. It has been held, also, — in the Appellate Court of Illinois — that the use and occupation of a house for a family dwelling is a legitimate family expense, and falls within the meaning' of that term, as it is employed in the statute. Illingworth v. Burley, 33 Ill. App. 394; Barnett v. Marks, 71 Ill. App. 673; and in this construction of the statute we concur. The argument of the plaintiffs in error, in substance, is that, because there was a written lease, executed hv the husband alone, covering the period for which the suit was brought:, and because an action for use and occupation, at common law, will not lie where there is such a lease, it follows that an action for use and occupation, under the family expense statute, in cases where a lease is found to be in existence, will not lie. The insistence is that the suit ought to have been brought by the lessor (the husband of the defendant in error) against plaintiff in error, James H. Walker, the lessee; and only upon the lease. The fault of this argument: is in the assumption that a suit for use and occupation, under the family expense statute, is identical with a suit for use and occupation, at common law; and that both are, on that account, subject to the same conditions. But this is not true. The right of action, at common law, did not create a liability. It proceeded upon the pré-existiüg relation of landlord and tenant, and in the absence of such relation, was not maintainable. It was intended, as modified, from time to time, by statute, to provide an easy remedy in cases where, without a written lease, there was an actual occupation; leaving other more complicated cases— such as arise at times upon leases — to their appropriate and ordinary remedy. The family expense statute under consideration, on the contrary, is not simply remedial. It creates a right in favor of the creditor, and a liability against the husband and wife. It introduces into the law a new character of obligation. It is, in no sense, an additional method of enforcing the relation of landlord and tenant, which was the sole purpose of the common law action for use and occupation. The existence of the lease, in an action like this, is, of course, a material fact. It tends to show the value of the use and occupa-, tion. It may, by virtue of its force as a contract, set a limitation [622] upon the amount that can be recovered. .But it is not the basis of the suit. The suit is founded upon the provision of the statute that the wife, as well as the husband, shall be liable for family expenses; and upon the fact that the use of a dwelling house is, within the meaning of this statute, a family expense. The circumstance that the subject-matter is the use and occupation of real estate is an incident only; the determinative fact is that, like flour and groceries, this use was for family purposes. With this clearly in mind, the errors assigned are seen to be based upon an erroneous conception of the nature of the suit. The judgment of the Circuit Court is, accordingly; affirmed