Race v. Sullivan

CourtUnited States Appellate Court of Illinois
Writing for the CourtBAILEY, J.
Citation1 Bradw. 94,1 Ill.App. 94
Decision Date30 April 1878
PartiesRICHARD T. RACE ET AL.v.JAMES SULLIVAN.

1 Ill.App. 94
1 Bradw. 94

RICHARD T. RACE ET AL.
v.
JAMES SULLIVAN.

Appellate Court of Illinois, First District.

April Term, 1878.


[1 Ill.App. 94]

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;

[1 Ill.App. 95]

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,

[1 Ill.App. 96]

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

[1 Ill.App. 97]

was due the petitioner for the work done under said contract, and for such...

To continue reading

Request your trial
3 practice notes
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • 21 Marzo 1908
    ...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. Dunn, 5 Kan. 254; Shepar......
  • City of Rawlins v. Murphy, 642
    • United States
    • United States State Supreme Court of Wyoming
    • 9 Mayo 1911
    ...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 v. Dunn, 5 Kan. 254; Shepard v.......
  • Pease v. Catlin
    • United States
    • Illinois Appellate Court
    • 30 Abril 1878
    ...payment was to apply, whether that is such an act as a promise can be inferred from, to pay the balance of any particular indebtedness, [1 Ill.App. 94] on which the creditor may choose to indorse the same. We have been referred to no such case, and upon principle, we think no such inference......
3 cases
  • City of Rawlins v. Jungquist
    • United States
    • United States State Supreme Court of Wyoming
    • 21 Marzo 1908
    ...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. Dunn, 5 Kan. 254; Shepar......
  • City of Rawlins v. Murphy, 642
    • United States
    • United States State Supreme Court of Wyoming
    • 9 Mayo 1911
    ...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 v. Dunn, 5 Kan. 254; Shepard v.......
  • Pease v. Catlin
    • United States
    • Illinois Appellate Court
    • 30 Abril 1878
    ...payment was to apply, whether that is such an act as a promise can be inferred from, to pay the balance of any particular indebtedness, [1 Ill.App. 94] on which the creditor may choose to indorse the same. We have been referred to no such case, and upon principle, we think no such inference......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT