Race v. Sullivan

• Decision Date: 30 April 1878
• Citation: 1 Bradw. 94,1 Ill.App. 94
• Parties: RICHARD T. RACE ET AL.v.JAMES SULLIVAN.
• Court: United States Appellate Court of Illinois

1 Ill.App. 94

1 Bradw. 94

RICHARD T. RACE ET AL.

v.JAMES SULLIVAN.

Appellate Court of Illinois, First District.

April Term, 1878.

OPINION TEXT STARTS HERE

Error to the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.

Mr. David S. Pride, for plaintiffs in error; that allegations and proof must correspond, and complainant is not entitled to relief unless there are averments in his bill to support the evidence, cited Heath v. Hall et al. 60 Ill. 344; House v. Davis, 60 Ill. 367; Cronk v. Trumble, 66 Ill. 428; Tracy v. 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 of the premises, Delahey v. Clement, 3 Scam. 201; Stephens v. Holmes, 64 Ill. 336; Rothgerber v. Dupuy, 64 Ill. 452; Canisius v. Merrill, 65 Ill. 67.

That the court should have set aside the decree, because the property was sold for a grossly inadequate sum, and because it was brought to the notice of the court that the property was owned by minors, Thomas v. Hebenstreit, 68 Ill. 115; Hartman et al. v. Hartman, 59 Ill. 103; White et al. v. Glover, 59 Ill. 459.

Mr. Samuel M. Booth and Frank J. Loesch, for defendant in error; upon the question of variance between the allegations and proof, cited Hopkins v. Snedaker, 71 Ill. 449; Stanley v. Valentine, 79 Ill. 544.

That the objection comes too late in this court, Tug Boat Dorr v. Waldron, 62 Ill. 221; Mains v. Cosner, 62 Ill. 465; Semmes v. United States, 1 Otto, 21; Wood v. Farnell, 50 Ala. 546; Mitchell v Milhoam, 11 Kan. 617; Thompson v. Hoagland, 65 Ill. 310; Reynolds v. Palmer, 70 Ill. 288; Allen v. Nichols, 68 Ill. 250; Allen v. Payne, 45 Ill. 339.

As to allowance of interest, Rev. Stat. chap. 74, § 2; Albee v. Wachter, 74 Ill. 173.

That a proceeding for a mechanic's lien is not entirely in rem, Gould v. Garrison, 48 Ill. 258; Clark v. Moore, 64 Ill. 273; Rev. Stat. chap. 82, §§ 9, 25.

The court did not err in refusing to set aside the default and decree, Lynn v. Boilvin, 2 Gilm. 629; Iglehart v. Marine Ins. Co. 35 Ill. 514; Schneider v. Seibert, 50 Ill, 284; Bowman v. Bowman, 64 Ill. 75; Terry v. Trustees of Eureka Coll. 70 Ill. 236; Freibroth v. Mann, 70 Ill. 523; Rev. Stat. chap. 22, § 18.

That parties against whom no decree is taken cannot object, Hawke v. Snydacker, 10 Chicago L. N. 181; Rowand v. Carroll, 81 Ill. 224; Fonville v. Sausser, 73 Ill. 451; Richards v. Greene, 78 Ill. 525; Clark v. Marfield, 77 Ill. 258; Henrickson v. VanWinkle, 21 Ill. 274.

As to awarding execution for balance, Eames v. Germania Turn Verein, 74 Ill. 54; Rev. Stat. chap 11, § 34.

BAILEY, J.

On the 9th day of January, 1874, the defendant in error filed in the court below his petition for a mechanic's lien, therein alleging that on the 20th day of November, 1872, Richard T. Race, and Susan A. Race, were owners in fee of lots 22 and 23, in block 39, in the N. E. 1/4 of Sec. 22, Town 40 N., R. 13, E. of 3d P. M., in Irving Park, in the county of Cook; and that on that day the petitioner and Richard T. Race, one of the plaintiffs in error, entered into a written agreement, by which the petitioner agreed to erect and complete a dwelling house on said lot 22, according to certain plans and specifications, the same to be completed on or before April 1st, 1873. This written agreement, a copy of which is made a part of the petition, purports to be an agreement between James Sullivan of the one part, and R. T. Race & Co. of the other part.

The petition avers that in and by said agreement said Richard T. Race, “by the name of R. T. Race & Co.,” promised and agreed to pay the petitioner for erecting said house the sum of $3,000, to be paid in a certain specified manner; that said contract was signed by said Richard T. Race, with the name of R. T. Race & Co., but that the petitioner contracted with Richard T. Race alone, and if other persons associated in business with him were interested in said transactions, the petitioner did not know it at the time said contract was made.

It is further averred that by a subsequent arrangement between the petitioner and said Richard T. Race, the house was actually erected on lots 22 and 23, and that it was fully completed about June 1st, 1873; that in building said house, the petitioner, at the request of said Richard T. Race, did certain extra work not embraced in the original agreement, amounting to $359; and that at the time of filing the petition there was due the petitioner for the work done under said contract, and for such extra work, the sum of $1,182.50; that since said money became due, the petitioner had frequently demanded payment of the same of said Richard T. Race, who had wholly failed and refused to make such payment; that said building was erected with the knowledge, approbation and consent of said Susan A. Race, and for the joint use and benefit of said Richard T. and Susan A. Race.

The petition further sets up, as an excuse for the non-completion of the building within the time stipulated, that the work thereon was delayed and the completion thereof deferred, at the request of said Richard T. Race. It then avers “that Everet Chamberlin, Charles T. Race and Stephen A. Race, claim to have some interest in said land and building, and he therefore makes them parties defendant to this suit.”

The petition prays for process of summons against Richard T. Race, Susan A. Race, Everet Chamberlin, Charles T. Race and Stephen A. Race, and for the benefit of a mechanic's lien on said land and building, and for a sale of the same to pay petitioner's said demand and costs, and a general prayer for relief.

On the filing of the petition, a summons was issued and returned not served. On the 3d day of May, 1876, an alias summons was issued against all the defendants named in the petition, and was returned served on Richard T., Charles T., and Stephen A. Race, and “not found” as to the other two defendants.

The defendants thus served were afterwards defaulted, and the petition taken as confessed by them, and the suit referred to the Master to take proofs. Before the Master the petitioner proved by his own testimony that the firm of R. T. Race & Co. consisted of Richard T. Race, Susan A. Race, Charles T. Race and Stephen A. Race; and in answer to a question whether any members of said firm besides Richard T. Race had “recognized said contract,” he answered that he had made demands upon Charles T. and Stephen A. Race at various times for the balance due him under said contract, and they admitted the amount claimed-- $1,182.50--to be due, but wished Richard T. who attended to the business of the firm, to settle it; and that Stephen A. Race told petitioner that he wished the claim was settled, as he could not obtain a settlement of the copartnership affairs until it was.

Upon the coming in of the Master's report, the court rendered its decree, finding that the defendants, Richard T., Stephen A., Charles T. and Susan A. Race, made with the petitioner the said contract for the erection of said dwelling house, and that there was then due the petitioner by the terms thereof the sum of $1,182.50, and interest thereon at six per cent. from October 2d, 1873, making a total of $1,454.42, and decreeing a lien on said premises “for the amount so found to be due from the defendants, Richard T., Charles T. and Stephen A. Race, and that the defendants, Richard T., Charles T. and Stephen A. Race, or some of them, pay said sum,” etc., within a time limited by the decree, or in default of such payment the said premises be sold, etc., and that in case, after the proper application of the proceeds of such sale, any portion of the sum decreed to be paid to the petitioner should remain unsatisfied, the sum so remaining should stand as a judgment at law in favor of the petitioner, and against said defendants, Richard T. Race, Stephen A. Race and Charles T. Race, and that execution issue thereon as on a judgment at law.

Said premises were afterwards exposed for sale by the master, in pursuance of said decree, and were struck off and sold to the petitioner for $50; and upon confirmation of the master's report of sale, showing a deficiency of $1,444.92, it was ordered that an execution in favor of the petitioner and against the property of the defendants, Richard T. Race, Charles T. Race and Stephen A. Race, issue for that amount.

Various errors are assigned, but we deem it...