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 said he had got another letter, in which she refused to furnish the money to build the balance of the house. He made a good deal of complaint about it, and said she did not do as she had agreed. I told him if that was the case, I would not furnish the bill of lumber. ‘Well,’ he says, ‘I have got money enough to pay for this material for the foundation, and keep it in good shape for the winter.’ He went ahead and finished up that and stopped. In the spring, or towards spring,-March or April,-he came down, and said: ‘I have got a letter now, and we will go ahead. I have permission now to go ahead. It is all right.’ I made the bargain to take the cash, provided they sent it, for the bill, with simply the profit on the lumber; and if they did not send the money, with ten per cent. interest. The building was to be completed about June; may have been latter part. The extent of the time, unless secured on the property, was one year; that was what he understood and I understood. Ten per cent. was the usual rate of interest at that time. I paid it to parties myself. I furnished the amount stated in the bill, $1,102 and some cents. I have not seen the bill since the last trial. The bill is $1,101.49. Furnished all that material. We charged him no profit on anything, only the lumber, and we only charged him the usual profit on that. These charges are the same as had been agreed upon between us. The lumber, material, and labor were all used in building the house on this lot upon which Mr. Downing lives. They have never paid us any portion of this indebtedness. There is due us the amount of this bill, with interest on it at ten per cent. from July, 1878. I had a conversation with Mr. Downing about this matter previous to bringing suit. He told me she had refused to pay it, and to commence on her right away. This was in 1879. Mr. Downing moved into the house when completed, and has lived there ever since.'
On cross-examination he testified:
‘Mr. Downing did not pretend, when we talked at the time of this contract, that he had seen Mrs. Tows, only claimed to state contents of letters,-of different letters. They are not all here. I have heard things that are not here. I only know what he tole me.’
He further said:
‘I do not think he saw Mrs. Tows. She was in New York, and he running a train.’‘He told me at one time that Mrs. Tows refused to pay, and that was the reason I stopped.’
At one time he said he thought charge had been made on the books against Mrs. Tows, and he added that the account was charged to W. W. Downing as agent. He produced the books, and then admitted that there was no charge against Mrs. Tows and none against W. W. Downing as agent. The entire bill was charged against William W. Downing alone. He also said:
‘I knew the deed was made to Mrs. Tows. * * * I knew the lot was in her name for his use. There was nothing in the deed that said for his use, but he told me so.’
Downing testified that he made the contract for the lumber, etc., with Tripp, in his own name; that he did not represent that he was the agent of Mrs. Tows, or contract in her name as such. His language is:
‘At the time of making the contract there was no time set for payment; he was to give me all the time I wanted. That was all the contract there was,-that he would furnish the lumber, and take me for it. There was no Mrs. Tows mentioned, nor Mrs. somebody else. She was not mentioned, only occasionally. When the 350 came I told him she said she would not send any more. She sent me 350 to assist me to put up the building. I told him of it. There was nothing said about her liability, or what she would do in the matter. I never mentioned Mrs. Tows' name in buying the lumber, as agent or otherwise. Tripp never told me that he would not furnish further supplies unless Mrs. Tows would be responsible for it. I bought the lumber on my own credit. Tripp agreed to give me all the time I wanted. I was to pay for it as I could get the money. I stated all the circumstances; I did not cover up anything. He said, go ahead and he would see me through. I bought in my own name, and he did not give time to pay anything on it until he sued me. I never said that I was acting as her agent in any way, shape, or form, only in buying the lot.’
He says Mrs. Tows sent him the $350 above alluded to, in a letter, late in the fall of 1877, and that he showed Tripp no more letters after that. He was asked this question:
‘If he sold the lumber to you, and did all this work upon your credit, why did you take any of these letters down and read to him?’
To which he responded:
‘To show him I was trying to get them to help me, and so I could pay him. He was interested in getting his money as much as I was in paying him. He had nothing to do with Mrs. Tows. I took him the letters to show him I was disappointed in getting the money, and that I was not going back on him. I supposed she would help me out.’
Letters written by Mrs. Tows were introduced in evidence as follows:
First. To W. W. Downing:
‘NEW YORK, Sept. 27.
‘ My Dear Brother: Have just received Jo.'s from Peoria, and hasten to say that I have but $500 at my disposal; but if you can get the lot for $700 cash and can build a house for $1,000, giving me plenty of time to pay, I will try and borrow the two hundred; the sale to be made...
