Mclean v. Mcbean

• Citation: 74 Ill. 134,1874 WL 9092
• Parties: THOMAS MCLEANv.JOHN MCBEAN.
• Decision Date: 30 September 1874
• Court: Supreme Court of Illinois

74 Ill. 134

1874 WL 9092 (Ill.)

THOMAS MCLEAN

v.JOHN MCBEAN.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN BURNS, Judge, presiding.

Messrs. HOYNE, HORTON & HOYNE, for the appellant.

Mr. IRA W. BUELL, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by John McBean, in the Superior Court of Cook county, against Thomas McLean, for filling, grading and paving in the year 1858 or 1859, Washington street, in the city of Chicago, in front of property then owned by Thomas McLean, Sr., father of appellant.

The declaration contained the common counts, to which appellant filed three pleas, general issue, the statute of limitations and the statute of frauds. A jury having been waived, a trial was had before the court, which resulted in a judgment in favor of appellee, for $400.

It appears from the record, that the work for which this suit was brought to recover was performed in 1858 or 1859. Appellee testifies that the work was done at the request of property owners fronting on Washington street, including Thomas McLean, Sr. The only other witness called by appellee, however, testifies that McLean objected to having the work done at the time, for the reason that the buildings on his property were old, and he was receiving but small rents; but aside from this fact, appellee testified that McLean, Sr., several times promised to pay him for the work, and a like amount that Mr. Peck, another property owner on the street, should pay.

The evidence tends to show the work was worth $1,600, but no settlement was effected between McLean, Sr., and appellee, up to the time of his death, which occurred in 1865.

The property fronting on Washington street was devised to appellant and his sister, who were the only children and heirs-at-law of Thomas McLean, Sr.

In 1869 or 1870, Mr. Peck settled with appellee for the work on the street fronting his property, and paid fifty cents on the dollar upon the cost of the work.

Appellee proves by Mr. Barker, that in 1869 or 1870, appellant agreed to settle and pay on the same terms that Mr. Peck had; that he would pay $400 for himself, and his sister would pay a like amount. Appellee himself testified that appellant made a like promise to him in New York in 1871.

The evidence of both of these witnesses is squarely contradicted by appellant, who, in his evidence, says he never at any time promised or agreed to pay the demand or any part of the same.

Appellee bases his right of recovery against appellant solely upon this promise, when the clear conflict in the evidence is considered, in connection with the fact that this account was standing unsettled from 1858 to 1865, the date of the death of McLean, Sr., for whom the work was claimed to have been done, and from that time no effort whatever having been made to enforce its collection until 1869 or 1870, it is not going too far to say the evidence is very unsatisfactory upon which to sustain a judgment. We are not, however, inclined to disturb the judgment upon this ground, as there is another question fatal to a recovery.

A recovery is not claimed on the ground that appellant was devisee of his father, and as such liable for the debt. Where an action is brought against the heirs or devisees, under our statute, the facts authorizing it must be distinctly set forth in the...