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Messrs. E. H. & N. E. Gary, for appellant.

The only question in dispute is whether or not the medica services rendered by appellee come within Sec. 15, Chap. 68 of the statute relating to husband and wife, which reads 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 trial court held in the affirmative and rendered judgment for the plaintiff. This section of the statute has been under consideration by this court twice before.

Von Platen v. Krueger, 11 Ill. App. 627; Hayden v. Rogers, 22 Ill. App. 557.

The opinion in the latter case has no bearing upon the question involved in this case. The former opinion, we think, is decisive and in direct opposition to the decision now complained of.

This statute was copied from the Iowa statute, and the same is also in force in Oregon. It has been before the Supreme Court of Iowa in the following cases: Rodemeyer v. Rodman, 5 Iowa, 426; Finn v. Rose, 18 lowa, 566; Hawk v. Urban, 18 Iowa, S3; Laurence v. Sinnamon, 24 Iowa, 80; Smedley v. Felt, 41 Iowa, 588; County v. McDonald, 46 Iowa, 170; Jones v. Glass, 48 Iowa, 345; McCormick v. Murth, 49 Iowa, 536; Sherman v. King, 51 Iowa, 182; Russell v. Long, 52 Iowa, 250; Farrar v. Enery, 52 Iowa, 725; Fitzgerald v. McCarty, 25 Iowa, 702; Davis v. Ritchey, 55 Iowa, 719; Marquardt v. Maugher, 60 Iowa, 148; Frost v. Parker, 65 Iowa, 178; Waggoner v. Turner, 69 Iowa, 128.

The same statute has been before the Supreme Court of Oregon three times. Watkins v. Mason, 11 Oregon, 72; Smith v. Sherwin, 11, 269; Phipps v. Kelley, 12, 213.

Most of the Iowa cases were referred to by this court in the Von Platen case, and the rule for determining what are family expenses within the meaning of the statute laid down by the Iowa courts was then adopted. It is as follows: “Was the expenditure a family expenditure? Was it incurred for, on account of, and to be used in the family ?”

Walcott v. Hoffman.

A breaking-plow and rea per, to be used by the husband alone, although for the benefit of the family, was held not to be a family expense, while a cooking stove, piano and other articles to be used by the family were held to be fainily expenses. Money borrowed for the use of the family, attorneys' fees, expenses incurred in the treatment of an insane wife, were decided not to be family expenses.

The cases of Marquardt v. Maugher, and Waggoner v. Turner, supra, are later than the case of Von Platen v. Krneger, supra.

In the first mentioned case, all the articles purchased, except one ring, costing three dollars, were used by the family. It may fairly be presumed the ring was purchased by the wife, the appellant, and used by her. No question seems to have been made as to that. The decision in the case was based on the case of Smedley v. Felt, where the rule above quoted was established.

In the case in the 69th Iowa the claim was for medicine and medical services for the family. In the Oregon cases the articles furnished were for use by the family.

From all the decisions made upon the subject it seems the wife can not be made liable under this statute unless the claim is for expenditures incurred for, on account of, and to be used or kept for use in the family. It must be general and not individual; and it is not material that it directly or indirectly benefits the family; nor is it material whether it is a necessary or a luxury.

It therefore becomes important to inquire where the doctrine announced by the trial court in this case will lead. If the wife is liable for medical services rendered to the husband alone she is liable for legal services rendered. She would be liable, for his clothing, his bill at the barber shop, at the cigar store or at the saloon. She would be liable for his theater tickets, or, what is more expensive, if not extravagant in these days of exciting amusement, his tickets and expenses at the bali games; or his assessment at the clubs. In short, she would be liable for all his personal luxuries and extravagancies.

Mr. JAMES FRAKE, for appellee.

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This court in the case of Von Platen v. Krueger, 11 Ill. App. 627, reviewed many of the Iowa cases, and adopted the construction placed upon the statute of which ours is a copy.

In the case of Finn v. Rose, 12 Iowa, 566, the action was for a cook stove nised in the family. The court say a cook stove and fixtures, when purchased for that use and used in the house, as properly come within the meaning of the statute as clothing, food or medicine.

In Hawk v. Urban, 18 Iowa 83, the court say this action was brought

to recover judgment for provisions, clothing, etc., properly included in the term "expenses of the family.”

In Fitzgerald v. McCarty, 55 Iowa, 706, the court, in reversing on account of faulty instruction, say: “Under the instruction given, it is sufficient if an article was purchased for, on account of, and with the intent to be used in the family, although never used therein, or by any member of the family."

In Davis v. Ritchey, 55 Iowa, 720, suit for money loaned to pay for medicine for deceased husband and provisions for family, the court say: “It may be, and in this case was, used to procure what, if obtained on credit, would have been a family expense.'

In Waggoner v. Turner, 69 Iowa, 128, the court sustains a claim for medicine and medical services for the family. The case is silent as to whether the medicine and medical services were for more than one member of the family or not.

GARY, J. The only question in this case is whether medical attendance upon the husband is a family expense under Sec. 15, Chap. 68, R. S., 1874.

This court concurs with the Circuit, that it is. Marquardt v. Maugher, 60 lowa, 148; Hudson v. King, 23 II]. App. 118.

Judgment affirmed.

Schilling v. Rosenheimn.

20 81 60 562

WILLIAM SCHILLING

V.
EMIL ROSENHEIM.

Agency-Extent of Authority-Evidence.

1. One who deals with an agent having no general authority is bound to ascertain the extent of his authority.

2. In the case presented, the court below improperly instructed the jury to disregard certain evidence.

[Opinion filed January 16, 1889.]

APPEAL from the Circuit Court of Cook County; the Hon. Julius S. GRINNELL, Judge, presiding.

Mr. Edmund FURTHMANN, for appellant.

Messrs. GRANT NEWELL and ARTHUR B. CAMP, for appellee.

Gary, J. This is a very small case, but the appellant had a right to appeal, and to the judgment of this court, upon the merits.

The appellee is a tailor and employed a coat maker named Beckman, who owed the appellant. The appellant testified to an arrangement between himself and Beckman by whicl: appellant furnished the cloth and Beckman was to make for appellant a suit of clothes. That he had no dealing with appellee; that the cutter of appellee took his measure and tried on the suit when it was partly finished. The appellee testified that Beckman asked him how much he would charge to make and trim a suit of clothes for appellant if appellant would furnish the cloth; that he, appellee, sent Beckman with samples of the trimmings, from which appellant made a selection, and then appellee sent his cutter to take the measure, and told him to tell appellant that the price would be $18. He also testified to conversations between himself and appellant.

VOL. XXX 6

Vol. 30.]

Widows and Orphans' Beneficiary Ass'n v. Powers.

The cutter testified that he told appellant that appellee said the suit would cost appellant $18. This was all of the testimony material to the point to be decided. The court instructed the jury to disregard the evidence of the couversation between Beckman and appellant when the appellee was not present. It was a question for the jury upon the evidence, whether the suit was made by appellee upon the order of Beckman, or upon any bargain, express or implied, between the parties themselves.

Beckman was no general agent of either of the parties. He had no authority to pledge the credit of the appellant further than the instructions given him by appellant warranted. If the appellee dealt with Beckinan as agent of the appellant, the appellee was bound to ascertain the extent of Beckman's authority, or abide the consequence. Story on Agency, Sec. 126 in note. If, therefore, there was no bargain, express or implied, between the parties themselves, and the appellee made the suit upon the order of Beckınan, which mitter the jury should have been left free to decide upon the evidence, then it was material for the jury to know upon what terms between appellant and Beckman, Beckman was authorized by appellant to give such order, for only by those terms was appellant bound.

Those terms could only be shown by showing what took place between themselves, and the court erred in striking out the testimony relating to them.

Reversed and remanded.

30 82 51 582 30 60) 582

30 82 78 394 79 336

The Widows AND ORPHANS' BENEFICIARY Asso-
CIATION OF THE ANCIENT ORDER OF HIBERNI-
ANS OF THE STATE OF ILLINOIS

V.
MARGARET POWERS.

30 82 82 388

30 82 84 620

Practice--Bills of Exceptions-Seal.

30 82 S6 673

This court can not consider a bill of exceptions which was signed but not sealed by the judge of the court below.

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