Brown v. Walker

Mr. Justice Crabtree

delivered the opinion of the court.

Appellee filed a claim in the County Court of DeKalb County, against the estate of Jess A. Peterson, deceased, of which appellant was administrator. The items of the claim were board and washing alleged to have been furnished to deceased by appellee. The claim was allowed in the County Court, and the administrator appealed to the Circuit Court, and upon a retrial of the cause appellee obtained a verdict, but such verdict was set aside by the court and a new trial granted. The cause having been again tried, appellee had a verdict for $108.33, upon which the court entered judgment after overruling a motion for a new trial, and the administrator prosecutes this appeal.

Various errors are assigned, but the only question we deem it necessary to consider is, whether a wife can recover for board furnished to one living in the family of which her husband was the head, in the absence of any evidence of a contract therefor by the wife, with the consent of the husband»

It appears from the evidence that deceased was a single man and boarded in the family of James Walker, the husband of appellee, and that the husband and wife were living together upon a farm rented by the husband. That appellee did washing for deceased during a part of the years 1890 and 1891. That deceased held a promissory note against James Walker, the husband, for $81, upon which a payment of $31 was indorsed as interest. The administrator still holds the note against the husband unpaid as to the balance due.

There is no evidence of any contract between the parties as to the board and washing, nor is there any proof the wife furnished the board with the consent of the husband. The husband was, so far as the evidence shows, the head of the family, furnishing supplies for its support and maintenance. If the right of action is held to be in the husband, the administrator would have the right to set off as against the claim for board, whatever may be due on the note, but on the other hand, if the wife is permitted to recover the claim filed by her, no right of set-off exists. In the case of Parker v. Parker, 52 Ill. App. 333, it was said:

“ .The general rule is that the right to receive and recover moneys due * * * from boarders, is in the husband, and that the wife has no legal demand therefor, though her personal services and labor as housekeeper contributed to the creation of the indebtedness due for such board and lodging.”

We entirely concur in this view, and nothing appearing to bring this case within any exception to the general rule, we hold the wife, the appellee here, has not shown a right to recover for the items of board in the claim filed by her. It is true a recovery for board on the part of the wife, was npheld in the Parker case, supra, because the court said it was satisfactorily shown that the husband was willing, and consented that the deceased, who was his brother, should have a home and be supported at his table, and lodged in his house for a compensation to be paid to the wife. Also that the deceased understood that his obligation was to the wife and not to the husband, and repeatedly asserted that he was to pay the wife and not the husband. These facts clearly excepted the case from the general rule above stated. Ho such evidence appears in the case at bar, and hence the general rule must be applied.

If it be conceded the wife may recover for the items of washing, which was done by her own labor, these items only amount to $24, and hence the verdict and judgment for $108.33 can not be sustained.

The judgment will be reversed and the cause remanded.