Opinion
Gen. No. 44,538.
Opinion filed December 30, 1948. Released for publication January 21, 1949.
1. HUSBAND AND WIFE, § 95 — irrelevancy of evidence in action against husband for balance due on wife's fur coat. In seller's action under Family Expense Act to recover balance due on silver mink coat sold to defendant's wife, evidence that wife had other fur coats was irrelevant (Ill. Rev. Stat. 1947, ch. 68, par. 15; Jones Ill. Stats. Ann. 64.15).
See Callaghan's Illinois Digest, same topic and section number.
2. HUSBAND AND WIFE, § 81fn_ — scope of liability under Family Expense Act. Liability under the Family Expense Act is not limited to necessaries (Ill. Rev. Stat. 1947, ch. 68, par. 15; Jones Ill. Stats. Ann. 64.15).
3. APPEAL AND ERROR, § 1475fn_ — effect of absence of competent proof in record. Whether trial court, in seller's action under Family Expense Act to recover balance due on silver mink coat sold to defendant's wife, committed error in excluding evidence offered by defendant to show that coat was purchased for use in wife's separate business could not be determined by Appellate Court where record did not contain competent proof showing that wife had a separate business and that coat was used or kept for use in that business, and defendant did not make sufficient offers of proof as to such matters (Ill. Rev. Stat. 1947, ch. 68, par. 15; Jones Ill. Stats. Ann. 64.15).
4. HUSBAND AND WIFE, § 81fn_ — genesis of Family Expense Act. The Family Expense Act in Illinois was copied from a like statute in Iowa (Ill. Rev. Stat. 1947, ch. 68, par. 15; Jones Ill. Stats. Ann. 64.15).
5. HUSBAND AND WIPE, § 95fn_ — sufficiency of evidence in action against husband for balance due on wife's fur coat. Evidence that before sale of silver mink coat to defendant's wife was made plaintiff's saleslady exhibited coat to defendant in wife's presence, that thereafter one of defendant's secretaries sought to have plaintiff make a further reduction in price, that defendant's wife wore coat on at least two occasions in public while accompanied by defendant, and that defendant and wife, although having separate homes, lived together as husband and wife warranted judgment for plaintiff in action under Family Expense Act to recover balance due upon coat from defendant on ground that coat was a "family expense" for which defendant was liable (Ill. Rev. Stat. 1947, ch. 68, par. 15; Jones Ill. Stats. Ann. 64.15).
Appeal by defendant from the Municipal Court of Chicago; the Hon. SAMUEL HELLER, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1948. Affirmed. Opinion filed December 30, 1948. Released for publication January 21, 1949.
PAM, HURD REICHMANN, of Chicago, for appellant; KENNETH L. RICHMOND, of Chicago, of counsel.
SONNENSCHEIN, BERKSON, LAUTMANN, LEVINSON MORSE, of Chicago, for appellee; THOMAS CARLIN, JOHN J. FAISSLER and EDWIN A. ROTHSCHILD, all of Chicago, of counsel.
This is an action under Section 15, Chapter 68, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 64.15] known as the Family Expense Act, to recover the balance due upon a natural silver mink coat sold by plaintiff to defendant's wife. The case was tried without a jury and resulted in a judgment for plaintiff in the amount of $2,500. Defendant has appealed.
The sale transaction began in January 1947. A special price was set for the coat in view of an understanding that the purchaser would advertise plaintiff's business. Plaintiff expected that other fur coats might be sold as a result. In March defendant's wife paid $2,500 upon the purchase price, the balance to be paid in 90 days. The coat was subsequently lined and shipped to the purchaser's Beverly Hills, California, home. Late in April, 1947, the purchaser returned the coat to plaintiff as unsuitable for wear in California. Plaintiff refused to accept the coat under its policy of making no exchanges. In May the purchaser wired plaintiff to send the coat to the Plaza Hotel in New York City. This was done but the balance of the purchase price was not paid.
The question to be decided is whether the coat is a family expense, so as to render the defendant liable under the statute. The defendant contends that he was prejudiced because the trial court excluded evidence offered to show that the coat was not for use in the family, but for use in defendant's wife's separate business. He further contends that the trial court refused to consider evidence introduced to show that the purchase of the coat was a business agreement under which the purchaser was to use the coat in her separate advertising and publicity business in such a way as to induce others, seeing the coat, to patronize plaintiff.
Defendant's testimony did not tend to prove that his wife had a separate business. The extent of his testimony was that she had an income of her own exceeding $10,000 per year. Defense counsel stated at the trial that he wanted to prove by one of defendant's secretaries that "Mrs. Dahlberg has her own accounts, that Mrs. Dahlberg pays for her own business arrangements and business dealings, . . . ." He further stated that he was ready to prove that she was in the publicity and advertising business and produced plays.
The trial court sustained an objection to a question with reference to an insurance policy of purchaser. Thereupon, defense counsel stated that he wanted to prove that Mrs. Dahlberg had four other fur coats. An objection was sustained to a question whether she had a separate income from that given by her husband. The trial judge said he would permit the defendant to show if he could that Mrs. Dahlberg was in the business of buying and selling fur coats. The court indicated that under such a showing plaintiff would have difficulty in establishing defendant's liability.
We deem it unnecessary to consider the contentions made by the defendant arising upon the foregoing parts of the record. It is clear that the defendant made no offers of proof sufficient for us to determine whether or not they would have materially affected the case. The defendant had already testified that his wife had a separate income. The question of whether she had other fur coats was not relevant. The liability under the Family Expense Act statute is not limited to necessaries. Carson, Pirie, Scott Co. v. Stanwood, 228 Ill. App. 281. We cannot say that the court committed error in the several rulings of which complaint is made.
We have read the numerous cases cited by both parties. Defendant seeks to avoid liability on the ground that the purchase by his wife of the coat in question for use in her separate business, brought this ease under the holding in Jaycox v. Wing, 66 Ill. 182; Dunn v. Pickard Bros., 24 Ill. App. 423; and Staver Carriage Co. v. Beaudry, 138 Ill. App. 147. Suffice to say that in the record before us there is no competent proof that defendant's wife had a separate business and that the fur coat was used or kept for use in that business. There was no sufficient offer to make the proof.
The Family Expense Act in Illinois was copied from a like statute in Iowa. Hyman v. Harding, 162 Ill. 357. Illinois courts have been influenced by Iowa decisions in construing the Act in this State. It has been said ( McDaniels v. McClure, 142 Ia. 370) that the term "family expense" has not been clearly defined and that perhaps a definition should not be attempted. The criterion adopted in Iowa is whether the expenditure was incurred for, on account of, and to be used in the family ( McDaniels v. McClure; Smedley v. Felt, 41 Ia. 588); also whether the expenditure incurred was for an article used or kept for use in the family. Fitzgerald v. McCarty, 55 Ia. 702.
The record here shows that before the sale was made, plaintiff's saleslady exhibited the coat to defendant in the presence of his wife in their Chicago home; that thereafter one of defendant's secretaries sought to have plaintiff make a further reduction in the price, which had already been reduced from $7,200 to $5,000; and that defendant's wife wore the coat at least on two occasions in public while accompanied by her husband, the defendant. In view of these facts and the fact that defendant and his wife, though having separate homes, lived together as husband and wife and were, therefore, a family, we are satisfied that the coat was a family expense for which the defendant is liable. We think this conclusion is supported by the cases already referred to and Abrams v. Traster, 244 Ill. App. 533; Marquardt v. Flaugher, 60 Iowa 148; Robertson v. Warden, 197 Ill. App. 478; Otto v. Matthie, 70 Ill. App. 54; and Vercler v. Jansen, 96 Ill. App. 328.
For the reasons given the judgment of the municipal court is affirmed.
Affirmed.
BURKE, P.J., and LEWE, J., concur.