#### C. Abrams, Appellee, v. R. C. Traster and Helen Traster. R. C. Traster, Appellant.

Gen. No. 31,487.

*534Heard in the third division of this court for the first district at the October term, 1926.

Opinion filed June 13, 1927.

Webster & Holmgren, for appellant; Daniel Webster and Elmer N. Holmgren, of counsel.

No appearance for appellee.

Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendants to recover $160 which he claimed as a balance due him for goods, wares and merchandise sold and delivered to the defendant Helen Traster. Both defendants were served and Helen Traster entered her appearance in writing but did not appear on the trial. The case was tried before the court without a jury and there was a finding and a judgment in plaintiff’s favor for the amount of his claim against both defendants and B. C. Traster prosecutes this appeal.

The record discloses that on the 31st of May, 1922, the defendants went through a marriage ceremony before a justice of the peace at Crown Point, Indiana; that on July 15, 1919, the defendant, Caroline H. Emminger, now Mrs. Traster, was lawfully 'joined in marriage to Frank A. Leitner and that they were divorced in Cook county, Illinois, June 4, 1922. The evidence further shows that on November 22, 1925, a decree was entered by the superior court of Cook county annulling the marriage that had been performed at *535Crown Point, Indiana, on the ground that at the time that marriage was entered into there was a legal marriage still in force and effect between Mr. and Mrs. Leitner. It further appears that after the marriage ceremony was performed at Crown Point, the defendants returned to Cook county and resided together as husband and wife and that during the time they lived together as husband and wife, plaintiff sold to Mrs. Traster certain wearing apparel and it is to recover the balance due for the wearing apparel that plaintiff sues. The evidence further shows that some of the purchases were made from plaintiff by Mrs. Traster when the defendant R. C. Traster was present, and that there was no intimation by the defendants at any time that would indicate that the marriage ceremony performed at Crown Point, Indiana, was not legal, and plaintiff had no notice of any kind or nature that there was any question about the validity of the defendants’ marriage, but on the contrary, it was assumed by all parties that such marriage was binding so far as the business transaction between the plaintiff and the defendants was concerned.

Plaintiff in his statement of claim alleged that the $160 was due him for goods, wares and merchandise sold and delivered to Mrs. Traster and further that there was an account stated between him and the defendants. There is a further paragraph in the statement of claim alleging that plaintiff’s claim was based upon section 15, chapter 68, Revised Statutes, Cahill’s St. ch. 68, 15, which 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.” While plaintiff’s statement of claim was in the nature of three counts, yet an examination of the record discloses the fact that the case was tried *536upon the theory that plaintiff was entitled to judgment by virtue of section 15, above quoted, and we shall decide the case upon that theory.

The defendant, R C. Traster, contends that the judgment is wrong and should be reversed because the evidence fails to show that the merchandise alleged to have been sold and for which plaintiff sued was in fact delivered to Mrs. Traster and further that the evidence fails to show the fair and reasonable market price of the wearing apparel. We have examined the entire record in this case and are clearly of the opinion that each of these contentions is without merit. No such contention was interposed upon the trial, but on the contrary, the defense was that R C. Traster was not liable under section 15 above quoted, for the reason that before recovery could be had in that case a valid marriage must have been entered into between the defendants. Moreover, we think the evidence in the record is sufficient because it tends to show that goods were sold by the plaintiff to Mrs. Traster, — some of them in the presence of R 0. ‘Traster and payments made from time to time thereafter apparently by Mrs. Traster.

In support of the defendant’s contention that before a husband can be held liable under section 15, above quoted, it is a condition precedent that there be a legal marriage between the parties, the cases of Rand v. Bogle, 197 Ill. App. 476; Hess v. Slutsky, 224 Ill. App. 419; Schlesinger v. Keifer, 131 Ill. 104; Holnback v. Wilson, 159 Ill. 148, are cited.

In the Band case suit was brought by Rand, a dentist, against William L. Bogle and'Mrs. Cloe Barry to recover for professional services rendered by him to Mrs. Barry. Judgment was entered against .both defendants. Bogle sued out a writ of error from this court where the judgment was reversed. It appeared that Mrs. Barry was divorced October 8, 1912, and on *537November 4th following went through a marriage ceremony with Bogle and from that date the parties lived together in Chicago until September, 1913. In December, 1913, Mrs. Barry filed a bill praying that the marriage between her and Bogle be annulled and a decree was entered January 6, 1914, declaring the marriage void. The court there said (p. 477): “Under the statute it is a condition precedent to a recovery for family expenses that there be a legal relation of husband and wife. Schlesinger v. Keifer, 30 Ill. App. 253, affirmed in 131 Ill. 104; Houghteling v. Walker, 100 Fed. 253; Holnlack v. Wilson, 159 Ill. 148.” This quotation is all that was said on the subject. We presume that the statute mentioned in the paragraph quoted referred to section 15. An examination of the authorities cited in support of the proposition that there must be a legal marriage between husband and wife before a recovery can be had under section 15 discloses the fact that none of them is in point. In the Schlesinger case suit was brought against husband and wife and liability was predicated upon section 15. It there appeared that there was a valid marriage between the defendants, but that the parties were not living together as husband and wife at the time the dental services were performed for the wife but that the defendants were living separate and apart and the court held that before recovery could be had there must be a family in fact. Obviously that case is not in point. In the instant case there was no valid marriage between the parties, but they were living together as husband and wife. The question was not passed upon by the Supreme Court in the Schlesinger case (131 Ill. 104), but the judgment was affirmed on other grounds.

In the Houghteling case there was a valid marriage between the parties defendant and the question now before us was in no way involved or considered. And the Holnback case involved the question of a home*538stead. No question in regard to section 15 was in anyway involved or referred to.

In the Hess case cited by counsel for the defendant a husband and wife had been divorced. The mother was given custody of a minor child and $10 per week alimony was awarded to her. The wife afterwards re-married and the decree of divorce was so modified as to require her former husband to pay $5 per week for the support of the child. Medical services were rendered by plaintiff, a doctor, to the child and he brought suit against the former husband under section 15. It was held that there was no liability. The court there said (p. 421): “It has also been held that before a plaintiff may recover under the family expense statute, there must be a family in fact, and that the statute does not apply where the parents are divorced. Schlesinger v. Kiefer, 30 Ill. App. 253; Rand v. Bogle, 197 Ill. App. 476.” So that in that case the court construed the Band case as holding that before a recovery could be had under the family expense act, there must be a “family in fact” and not that a valid marriage was a condition precedent to a recovery under the statute.

Under the common law a husband was liable for necessaries furnished his wife, and this was so although the marriage was invalid. Frank v. Carter, 219 N. Y. 35, L. R. A. 1917 B 1288. In that case an action was brought to recover the purchase price of goods sold to defendant’s alleged wife. The court said: “The only remaining question for our consideration is whether the liability of the defendant was affected by the fact that his purported marriage with the woman was void. I think that it was n,ot. Inasmuch as he had gone through the form of a marriage with her and lived with her and held her out as his wife his status was no different for the purposes here involved than it would have been had the marriage been a legal one. (Johnstone v. Allen, 6 Abb. Pr. [N. S.] 306; Munro v. DeChemant, 4 Camb. 215; Blades *539 v. Free, 9 B. & C. 167; Ryan v. Sams, 12 Q. B. [A. & E. N. S.] 460.)”

In the case of Hoyle v. Warfield, 28 111. App. 628, it was held that where two persons were living together as husband and wife and were recognized and treated as such, the reputed husband, by reason of the provision of section 15, supra, was liable for family supplies sold, although the credit was extended to the reputed wife. In that case groceries were sold to the reputed wife and suit was brought against the husband to recover for them. The court said (p. 628-629):

> “The parties were living together as husband and wife and were recognized and treated as such in the community where they lived; and as to all who furnished them the necessaries of life which come under the head of family expenses, under the belief that such relation existed, when such belief is justified by the conduct of the parties, as it clearly was in this case, we think the provisions of Sec. 15 of Chap. 68, R. S., apply. * * *

> “Under the provisions of this section we think it makes no difference to which of the parties the credit is originally given; they are both liable. ’ ’ To the same effect is Warrington v. Anable, 84 Ill. App. 593. See also 30 C. J. 594.

In the instant case the defendants went through a marriage ceremony a few days before she was granted a divorce and after the marriage ceremony was performed, they lived together as husband and wife in Chicago, during which time the goods in question were sold. In these circumstances, we think the defendant R. C. Traster is liable under the statute as was held in the Hoyle case.

Judgment of the municipal court of Chicago is affirmed.

Affirmed,

Thomson, P. J., and Taylor, J., concur.