Prescott v. Maxwell

CourtIllinois Supreme Court
Writing for the CourtBREESE
Citation1868 WL 5053,48 Ill. 82
Decision Date30 September 1868
PartiesALICE P. PRESCOTTv.WILLIAM MAXWELL.

48 Ill. 82
1868 WL 5053 (Ill.)

ALICE P. PRESCOTT
v.
WILLIAM MAXWELL.

Supreme Court of Illinois.

September Term, 1868.


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

The opinion states the case.

Messrs. HELM & HAWES, for the appellant.

Mr. JOHN BORDEN, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

[48 Ill. 83]

This was a petition, by a sub-contractor, to enforce a mechanic's lien, under the act of 1863. This act is applicable to a few counties only, in the State, and its construction is now before us for the first time.

The original contractors were Clancy & Walsh, who engaged to finish the building complete, for three thousand one hundred dollars, to be paid as the work progressed, with the privilege reserved to the owner of the lot to retain ten per cent., as her security.

The contract was made June 9, 1864, and the whole amount of the payments, without any reservation, was made to the contractors on and before September 26, 1864, although they had not then completed the work.

On the 26th of October, 1864, the petitioner, Maxwell, took the contract, from Clancy & Walsh, to do the plumbing work then remaining undone on the house, for the stipulated sum of two hundred and thirty-nine dollars, and on the refusal of the defendant to pay this demand, he filed his petition for a mechanic's lien, and, on the trial before a jury, under the instructions of the court, a verdict was rendered for the petitioner for two hundred and eighty-six dollars. A motion for a new trial was made and overruled, and judgment entered on the verdict.

To reverse this judgment the defendant has appealed to this court, complaining of the second instruction given for plaintiff, and refusing those asked by the defendant, and for rendering judgment for more than was claimed in the petition.

Against this objection it is urged by appellee, that interest legitimately followed on the presentation and refusal of defendant to pay the claim. If this were so, it should have been claimed in the petition. The whole amount demanded, was two hundred and thirty-nine dollars, and beyond that there could be no recovery. The case of The Protective Union v. Nixon, 1 E. D. Smith 671, (N. Y.,) shows, that on presenting the account for payment, or giving notice thereof, interest was

[48 Ill. 84]

claimed. The notice is filed to create the lien, and that must show the amount claimed. The petitioner has recovered forty-seven dollars more than he was entitled to, and to that extent the judgment was erroneous.

But there is a more important question behind, arising upon the instructions.

The court gave, for the petitioner, the following instruction, to which exception was taken:

“The jury are instructed that, even though they should believe, from the evidence, that the defendant had paid the full contract price, prior to...

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13 practice notes
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...none is allowable. (R. S. 1899, Sec. 3533, Sub. 3; March v. Wright, 14 Ill. 248; Carter v. Lewis, 29 Ill. 500; Prescott v. Maxwell, 48 Ill. 82; Race v. Sullivan, 1 Ill.App. 94; Grand Lodge v. Bagley, 60 Ill.App. 589; David v. Conrad, 1 G. Greene, 336; Krause v. Hampton, 11 Iowa 457; Green v......
  • City of Rawlins v. Murphy, 642
    • United States
    • United States State Supreme Court of Wyoming
    • May 9, 1911
    ...such demand the plaintiffs were not entitled to interest. (March v. Wright, 14 Ill. 248; Carter v. Lewis, 29 Ill. 500; Prescott v. Maxwell, 48 Ill. 82; Race v. Sullivan, 1 Ill.App. 94; Grand Lodge v. Bagley, 60 Ill. 589; David v. Conrad, 1 G. Green, 336; Krause v. Hampton, 11 Ia. 457; Green......
  • Hogue v. Edwards
    • United States
    • United States Appellate Court of Illinois
    • May 31, 1881
    ...20 Ill. 478; Herrick v. Gary, 83 Ill. 85; Ill. Cent. R. R. Co. v. Benton, 69 Ill. 174; Leake v. Brown, 43 Ill. 372; Prescott v. Maxwell, 48 Ill. 82.Messrs. JAMES, JACK & MOORE, for defendants in error; that an amendment to a bill of exceptions should be filed nunc pro tunc, unless an order ......
  • Race v. Sullivan
    • United States
    • United States Appellate Court of Illinois
    • April 30, 1878
    ...Rogers, 69 Ill. 662; Page et al. v. Greeley, 75 Ill. 400. As to allowance of interest, Mills v. Heeney, 35 Ill. 173; Prescott v. Maxwell, 48 Ill. 82. As to decree, Kinney v. Sherman, 28 Ill. 521; Bush v. Connelly, 33 Ill. 448. Upon the question of awarding execution for balance after sale o......
  • Request a trial to view additional results
13 cases
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
    ...none is allowable. (R. S. 1899, Sec. 3533, Sub. 3; March v. Wright, 14 Ill. 248; Carter v. Lewis, 29 Ill. 500; Prescott v. Maxwell, 48 Ill. 82; Race v. Sullivan, 1 Ill.App. 94; Grand Lodge v. Bagley, 60 Ill.App. 589; David v. Conrad, 1 G. Greene, 336; Krause v. Hampton, 11 Iowa 457; Green v......
  • City of Rawlins v. Murphy, 642
    • United States
    • United States State Supreme Court of Wyoming
    • May 9, 1911
    ...such demand the plaintiffs were not entitled to interest. (March v. Wright, 14 Ill. 248; Carter v. Lewis, 29 Ill. 500; Prescott v. Maxwell, 48 Ill. 82; Race v. Sullivan, 1 Ill.App. 94; Grand Lodge v. Bagley, 60 Ill. 589; David v. Conrad, 1 G. Green, 336; Krause v. Hampton, 11 Ia. 457; Green......
  • Hogue v. Edwards
    • United States
    • United States Appellate Court of Illinois
    • May 31, 1881
    ...20 Ill. 478; Herrick v. Gary, 83 Ill. 85; Ill. Cent. R. R. Co. v. Benton, 69 Ill. 174; Leake v. Brown, 43 Ill. 372; Prescott v. Maxwell, 48 Ill. 82.Messrs. JAMES, JACK & MOORE, for defendants in error; that an amendment to a bill of exceptions should be filed nunc pro tunc, unless an order ......
  • Race v. Sullivan
    • United States
    • United States Appellate Court of Illinois
    • April 30, 1878
    ...Rogers, 69 Ill. 662; Page et al. v. Greeley, 75 Ill. 400. As to allowance of interest, Mills v. Heeney, 35 Ill. 173; Prescott v. Maxwell, 48 Ill. 82. As to decree, Kinney v. Sherman, 28 Ill. 521; Bush v. Connelly, 33 Ill. 448. Upon the question of awarding execution for balance after sale o......
  • Request a trial to view additional results

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