Prescott v. Maxwell
Decision Date | 30 September 1868 |
Citation | 1868 WL 5053,48 Ill. 82 |
Parties | ALICE P. PRESCOTTv.WILLIAM MAXWELL. |
Court | Illinois Supreme Court |
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. HELM & HAWES, for the appellant.
Mr. JOHN BORDEN, for the appellee.
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 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 the work done by the plaintiff, yet, if they further believe, from the evidence, that such payment was made in violation of the terms of the written contract between the defendant and the original contractors, and that defendant, or her agent, fraudulently misrepresented or concealed the fact of payment, by reason whereof the plaintiff was induced to, and did, perform the work, and furnish the material, under the belief there was money due on the contract, and if they further believe, from the evidence, that the plaintiff did the work proved to have been done on the building in question, relying on the terms of the contract for his pay, they should find for the plaintiff, provided the plaintiff has, in other respects, established his claim.”
A slight examination of this instruction will show its impropriety. It tells the jury, if a party, contracting to pay for the work and materials on a building, as the work progresses, reserving the right to retain ten per cent., for his own security, pays the whole amount due on the contract, reserving nothing, before the building is completed, such payment can not be allowed, to the prejudice of any employee of the contractor, and that the same is a violation of the terms of the...
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... ... 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; ... ...
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City of Rawlins v. Murphy
...of any 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 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; G......
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