Mccarty v. Carter

Citation1868 WL 5174,49 Ill. 53,95 Am.Dec. 572
PartiesSAMUEL MCCARTY et al.v.WILLIAM H. CARTER.
Decision Date30 September 1868
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Messrs. BONNEY & GRIGGS, and Mr. J. E. FAY, for the appellants.

Messrs. THOMPSON & BISHOP, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was a petition to establish a mechanic's lien, brought by Carter, the appellee, against Samuel McCarty, Emily A. McCarty his wife, and Lucy J. Davis, a daughter by a former husband of said Emily A. McCarty. The lot upon which the building had been erected belonged to the daughter, subject to a right of dower in her mother. The appellee had made his contract in writing with Samuel McCarty. On the hearing, the court gave for the complainant the following instruction:

“If the jury shall believe, from the evidence, that the contract in question was made by McCarty on behalf of himself and Mrs. McCarty and Lucy J. Davis, and that he was authorized by them to make the same, (and that after the said Lucy J. became of age she received the rents and profits of the building erected under the contract, or any part thereof), then such contract is binding, although their names do not appear in it, and it does not, on its face, purport to be their act.”

The principle embodied in this instruction was repeated in several others, and we will first consider it in regard to the infant appellant. The lien in this class of cases arises from work done or materials furnished under an obligatory contract, and if the contract ceases to be binding the lien necessarily fails. An infant is not bound by his contract, except in certain cases, to which the erection of a building for rent does not belong. A conveyance or mortgage by him of his real estate would not be binding upon him, and the legislature certainly never intended to allow him to encumber his property, indirectly, by a contract for its improvement, when he can not do the same thing in a binding mode by an instrument executed expressly for the purpose. A minor who has nearly attained his majority may be as able, in fact, to protect his interests in a contract as a person who has passed that period. But the law must necessarily fix some precise age at which persons shall be held sui juris. It cannot measure the individual capacity in each case as it arises. It must hold the youth who has nearly reached his majority to be no more bound by his contract than a child of tender years, and neither in one case nor in the other can it permit a contractor to claim a lien against his property under the guise of a contract for improvement. This would expose minors to ruin at the hands of designing men. The mechanic who erects a building must take, like all other persons, the responsibility of ascertaining that he is contracting with a person who has reached the requisite age. We therefore hold it immaterial whether Lucy J. Davis, being then a minor, authorized McCarty to make this contract or not.

Neither do we consider her receipt of rents, after she became of age, such a ratification of the contract of McCarty, even though made, as the instruction says, in her behalf, as would operate to create a lien against her. Ratification by an adult of a contract made by him when a minor is a question of intention. It can be inferred only from his free and voluntary acts or words. But it would be unreasonable to compel a minor to choose between the utter abandonment of his property and the creation of a lien upon it under a contract made during his minority, and to say, if he retains the property he ratifies the lien. If we were to hold that the mere receipt of rents amounted to a ratification, we should be taking from the minor the protection which the law designs to give him, for the builder might safely assume the minor would continue in the possession of his own property, and thus, by ratification, create a lien which the statute had not given when the contract was made. The builder might thus make what contract he could with the minor, under the assurance that, though the...

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33 cases
  • Young v. Hiner
    • United States
    • Supreme Court of Arkansas
    • March 12, 1904
  • Potter v. Davidson
    • United States
    • Supreme Court of Oregon
    • March 28, 1933
    ...... only a. [20 P.2d 411] valid contractual claim. Phillips on Mechanics' Liens,. (3d Ed.) 57, § 38; McCarty v. Carter, 49 Ill. 53, 95. Am. Dec. 572; Alvey v. Reed, Guardian, 115 Ind. 148,. 17 N.E. 265, 7 Am. St. Rep. 418; Bloomer v. Nolan,. ......
  • Sayles v. Christie
    • United States
    • Supreme Court of Illinois
    • October 19, 1900
    ...... 444]made by him when a minor is a question of intention,’ and that ‘it can be inferred only from his free and voluntary acts or words.’ McCarty v. Carter, 49 Ill. 53. But it will be found, as to most of the cases, that the utterance of mere words has been coupled with some act or acts, or ......
  • Swiney v. Womack , 20151.
    • United States
    • Supreme Court of Illinois
    • April 9, 1931
    ......Coe v. Moon, 260 Ill. 76, 102 N. E. 1074;Sayles v. Christie, 187 Ill. 420, 58 N. E. 480;McCarty v. Carter, 49 Ill. 53, 95 Am. Dec. 572;Davidson v. Young, 38 Ill. 145. Even where one has personally enjoyed the benefit of the consideration for the ......
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