Foley v. Bushway
| Decision Date | 31 January 1874 |
| Citation | 1874 WL 8680,71 Ill. 386 |
| Parties | STEPHEN A. FOLEY, Administrator,v.FRANKLIN C. BUSHWAY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Sangamon county; the Hon. JOHN A. MCCLERNAND, Judge, presiding.
Mr. N. M. BROADWELL, and Mr. WM. M. SPRINGER, for the appellant.
Messrs. PARKS & ALLEN, and Mr. A. ORENDORFF, for the appellee.
This was a proceeding before the county court of Sangamon, by Franklin C. Bushway against Stephen A. Foley, administrator on the estate of Erastus Wright, deceased, upon the following claim:
+------------------------------------------------+
¦“1872.¦Estate of Erastus Wright, deceased, ¦ ¦
+------+-------------------------------------+---¦
¦ ¦To F. C. Bushway, ¦Dr.¦
+------------------------------------------------+
To one rustic monument, at Oak Ridge Cemetery, $1200.”
The county court rendered a judgment against the administrator for the full amount of the claim and the costs. An appeal was taken to the circuit court, where a trial was had resulting in a like judgment.
To reverse this judgment the administrator appeals, and makes the point, that the estate he represents is not responsible for this monument, as he never contracted for its erection, or directed or approved the same. What are the facts? The main fact, the origin of this structure, is found in this agreement made by the widow of the deceased, Lucy F. Wright:
“SPRINGFIELD, ILL., Oct. 7 th, 1871.
This is to certify that I have this day contracted for and bought of Franklin C. Bushway, one monument, to be placed over the grave of Erastus Wright, in Oak Ridge Cemetery, in the county of Sangamon and State of Illinois. Said monument is to be of the following dimensions, and to be good, clouded American Italian marble, with the exception of a certain bust of the said Erastus Wright, deceased, which is to be a good likeness of the said Wright, and is to be of white American marble:
+------------------------------+
¦A limestone base ¦4¦2x4¦2x1 ¦6¦
+-----------------+-+---+----+-¦
¦Marble base ¦3¦2x3¦2x10¦0¦
+-----------------+-+---+----+-¦
¦First die ¦1¦8x1¦8x2 ¦8¦
+-----------------+-+---+----+-¦
¦Second die ¦2¦8x2¦4x3 ¦0¦
+-----------------+-+---+----+-¦
¦Spire ¦1¦2x1¦2x4 ¦0¦
+------------------------------+
Bust 2 feet high, proportionate. Total height, when set up, 14 feet.
The said monument is to be set up and finished by the 1st day of May, 1872. The foundation is to be of deep, solid masonry, of not less than four feet square and three feet.
The whole monument to be after a design now in my possession and furnished me by the said Bushway. The workmanship to be of good quality, for which the said Bushway is to be paid, on completion of said monument, the sum of twelve hundred dollars. The said money to be paid from the estate of the said Erastus Wright, deceased.
LUCY F. WRIGHT. [SEAL.]”
This undertaking, on its face, binds the maker of it only. Her stipulation, that the cost is to be paid by the money of the estate of the deceased, does not bind the personal representative of the estate, nor had the widow any authority by law so to bind the estate. But its agreement may be performed by the maker herself out of money from the estate, of which she obtained a large share, as it was a valuable estate, reasonably rich in lands and in money. Her “thirds” would be a very considerable sum, many thousands over and above the cost of this monumental display, and she might well design to pay the cost out of that portion of the estate which came to her. But if it be otherwise, if she undertook to pay the cost out of moneys of the estate over which she had no control, she stipulated to do that which she had no power to do, and if the estate fails to pay, the consequence is, she is herself personally liable, so that the artist can not be a loser.
Is there anything in the case to change this view of it?
The plaintiff testifies he showed the contract to appellant, the administrator, the day after it was made, and he did not object, but seemed pleased to know pla...
To continue reading
Request your trial
-
Reed v. Baggott
... ... G. G. GIBONS, for appellant; as to privity of contract, cited Compton v. Payne, 69 Ill. 354; Walker v. Brown, 28 Ill. 378; Foley v. Bushway, 71 Ill. 386; Pfirshing v. Falsch, 87 Ill. 262; Strawn v. O'Hara, 86 Ill 55; McCarthy v. Carter, 49 Ill. 53; Fetterhoff v. Paul, 73 Ill ... ...
-
Wilcox v. Dodge
...is on the contract and by that the plaintiffs must stand or fall: Walker v. Brown, 28 Ill. 378; Compton v. Payne, 69 Ill. 354; Foley v. Bushway, 71 Ill. 386. Where evidence is conflicting, instructions should be accurate: Volk v. Roche, 70 Ill. 299; Cashman v. Cogswell, 86 Ill. 66; Evans v.......
-
Spire v. Lovell
... ... Williams, 7 Bradwell, 67; Morgan v. Morgan, 83 Ill. 196; Foley v. Bushway, 71 Ill. 386.Mr. FRANK CROSBY and Mr. E. C. LOVELL, for defendants in error; that the expenditure for the monument should be allowed the ... ...
-
Little v. Williams
...13, 1880. Messrs. CLEMENS & BURTON, for plaintiff in error, cited York v. York, 38 Ill. 522; Heward v. Slagle, 52 Ill. 336; Foley v. Bushway, 71 Ill. 386. Mr. J. M. WASHBURN and Mr. GEORGE W. YOUNG, for defendant in error, cited Rev. Stat. 1877, 111; People v. Phelps, 78 Ill. 147; Curts v. ......