Smith v. Rubin

Mr. Justice Taylor delivered the opinion of the court. The plaintiff, Lloyd J. Smith, receiver, brought suit in the municipal court, in a fourth-class case, against the defendants, Sol Bubin and Sadie Buhin, who were husband and wife, for six months ’ use and occupation of certain premises, and upon a trial before the court without a jury obtained a judgment in the sum of $660. This appeal is from that judgment. It is contended that there was no evidence that the receiver was authorized or directed to bring this suit; that the evidence showed an express contract made with the husband alone for $110 a month; and that certain errors were made in ruling upon questions of pleading. The evidence showed that on May 29,1923, by order of the court, the plaintiff was appointed receiver, “with the usual powers of a receiver in chancery, for a certain building known as the Riviera Apartment Building,” and that he took possession of the premises about May 30, 1923. The receiver testified that soon after he took possession of the building he made oral arrangements with Sol Rubin to rent the apartment in question at $110 per month; that Sol Rubin agreed to pay $110 a month for the apartment as long as he stayed there; that he paid rent for June, July, August, September and October, 1923, at $110 a month; that that included telephone, light, heat, gas service and the laundry bill; that the premises were occupied by Sol Rubin and Sadie Rubin and their three children; that nothing was paid for the months of November and December, 1923, and January, February, March and April, 1924; that he requested payment of the rent from month to month, and Sol Rubin promised time and again to pay it. As to the question whether it was necessary for the evidence to show, affirmatively, express power in the plaintiff, as receiver, to begin this suit: It is generally the law that one who begins suit must have legal title or right to the thing sued for; so that where a suit is begun by a receiver, his title must be of that quality. Murtey v. Allen, 71 Vt. 377. The contract upon which suit is brought, whether considered as express or implied, came into being as the result of the mutual acts of the receiver, qua receiver, and the defendant Sol Rubin. In this situation, it is only reasonable to consider the receiver, at least for purposes of obtaining the rent, or the charge for use and occupation, as having legal title to that for which he brought suit; and such being the case, it follows that it was not necessary for the receiver, before beginning suit, to obtain special authority or an express order of the court. Further, as it was admitted by the defendants that the premises were rented and occupied by them, and as the evidence showed that rent was actually paid to the receiver for five months, and that the balance of what had accrued for the succeeding six months was not only admitted to be due but promised, it is not now the right or privilege of the defendants to deny the authority of the receiver as their landlord. As to the contention that the evidence disclosed only an express, oral contract between the receiver and the defendant, Sol Rubin: There was considerable discussion between counsel and the court on that subject at the trial, and the trial judge finally ruled, after permitting the statement of claim to be amended, that the evidence showed the plaintiff had proved that the defendants were liable jointly for use and occupation. It is the contention for the defendants that there is no evidence of liability on the part of the wife. The evidence does not show that the wife had anything to do with renting the premises. What dealings took place were entirely between the plaintiff and her husband. But it is urged for the receiver that a place to live, the use and occupation of the premises, was a household necessity, and, being such, both husband and wife are liable for the rent, even though the oral arrangements made, as testified to by the receiver, were wholly between the receiver and Sol Rubin. The statute on husband and wife, section 15, chapter 68 (Cahill’s St. 1925), provides that: “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.” A place to live being a necessity, it is the law that rent or charges for use and occupation of premises used for domestic living are necessaries and chargeable, under the statute, upon the property of both husband and wife, and that the liability of each is joint and several. Applying that principle to the facts in the instant case, it follows that it makes no difference whether the contract of leasing was made between the husband and the receiver without the intervention of the wife, or otherwise; that as the rent was a necessary, they were both liable jointly and severally therefor. Illingworth v. Burley, 33 Ill. App. 394; Harrison v. Hill, 37 Ill. App. 30; Porter v. Duzeski, 182 Ill. App. 6; Barnett v. Marks, 71 Ill. App. 673. Some matters are discussed pertaining to the pleadings in the case, but, as this was a suit of the fourth class and there is no question but that the defendants were sufficiently informed as to what the suit was about, and as the evidence sufficiently established the right of the plaintiff to the rent, in our judgment they are immaterial. The judgment, therefore, will be affirmed. Affirmed. Thomson, P. J., and O’Connor, J., concur.