3 N.E. 569 (Ill. 1885), Proctor v. Tows

Citation:3 N.E. 569, 115 Ill. 138
Opinion Judge:[115 Ill. 148] SCHOLFIELD, J.
Party Name:PROCTOR and others v. Tows and others.
Attorney:[115 Ill. 146] Star & Star, for appellants. [115 Ill. 147] Wells & Keithley, for appellees.
Case Date:November 14, 1885
Court:Supreme Court of Illinois

Page 569

3 N.E. 569 (Ill. 1885)

115 Ill. 138

PROCTOR and others

v.

Tows and others.

Supreme Court of Illinois

November 14, 1885

Appeal from appellate court, First district.

This was a petition by John C. Proctor and Charles W. Tripps, to enforce a lien for materials furnished and labor performed in and about the erection of a dwelling-house on a certain lot in the city of Peoria, against Mary Tows and William W. Downing. The defendants are brother and sister. The title to the lot is in Mrs. Tows, but the building was erected at the immediate instance of Downing, and has been occupied by him as a residence since. The claim of the petitioners is that they furnished the materials and procured the labor to be performed by virtue of a contract with Mrs. Tows, through Downing as her agent, or, as an alternative position, that the materials were furnished and labor performed pursuant to a contract with Downing to erect a dwelling-house on her lot, and that she, knowing what was being done, silently acquiesced therein. The defendants deny both claims. They contend that Mrs. Tows consented that Downing might build a house upon her lot, and occupy it indefinitely free of rent, upon condition of his keeping up repairs and paying taxes, and that she would aid him in building by advancing means. The material facts disclosed by the record are: Downing had two sisters, Mrs. Tows, the defendant, a married woman, residing in New York, and Mrs. Fuller, residing in Cleveland. Downing's financial condition was apparently not good, and there was a desire by these sisters to aid him in procuring a home for himself and family. Mrs. Fuller was visiting at Downing's in the summer of 1877, and she then assisted in selecting the lot which was afterwards purchased by Mrs. Tows, and she subsequently made, or aided in making, drawings and plans for the dwelling-house. But she advanced no money, and assumed no liability on account of the purchase of the lot or the erection of the building, and beyond, perhaps, a letter to Mrs. Tows with regard to the lot, and it may be the mailing to her of the drawings and plans, she had no further participation in the transactions. Information was communicated to Mrs. Tows that the lot could be purchased for $700, but it appears that she was unable to raise more than $650. That amount she sent in a check to Downing, and with it he purchased the lot and took the deed to Mrs. Tows. Afterwards he proceeded to erect thereon the house on account of which this lien is sought to be enforced. Tripp testified, as his evidence is abstracted,----

'That Downing, after getting the deed, came down; said he wanted to make arrangements about building on the lot; said he had the money; said they had written to him that they had money enough. Downing said he wished to go ahead and build the house, and said there was not money enough and asked credit. I told him as long as he was authorized to act as her agent in the matter I would sell him material to build the house. Question. On what terms? Answer. Sell him the material and furnish labor and all to build the house, at ten per cent. interest after the house was completed, at the usual prices for all material and labor, at what it cost in cash. I furnished the cash and paid it. That was the offer I made him. After talking it over he said he would have to wait a week to get another letter. He read the letters, or told me what they were. I think he read letters that I had not heard read here. She objected to the amount of interest, and said she did not think she could pay that much money. I never saw Mrs. Tows. I don't want anybody to understand that I ever saw her or received any letters from her. Mr. Downing represented himself to be her agent. After Mr. Downing had received several letters he said he had some money; he thought they should go ahead. They went to work and put the sills and lower joists down, and lower foundation. The bargain was that he was to have a year's time, with ten per cent. interest. The first bargain was along late in the season, November or December, 1877, two or three months after he got the lot. The bargain then was to fill the bill just as I have stated. After that he came down and...

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