Proctor v. Tows

3 N.E. 569, 115 Ill. 138

• Court: Illinois Supreme Court
• Decided: November 14, 1885
• Status: Published

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court:

The material facts in this case are sufficiently set out in the foregoing statement. It will be observed, by reading it, that there is no proof that Mrs. Tows authorized Downing to contract debts in her name, or in anywise to incumber her property. The only semblance of evidence to that effect will be found in the declarations of Downing, testified to by Tripp, and which Downing denies to have been made. Concedijig they were made, they prove nothing, for Mrs. Tows was not present, and is not shown to have ever approved of them or even to have heard of them. An agency can not be proved by the mere declarations of an agent, when the fact of agency is in issue. (Whiteside v. Margaret, 51 Ill. 507; Ranson, v. Curtiss, 19 id. 456; Maxey et al. v. Heckethorn, 44 id. 437.) The evidence both of Mrs. Tows and Downing, moreover, expressly negatives the fact of agency. There is evidence that Mrs. Tows knew that Downing was building a house upon her land, but not upon her credit. She had given him $350 with which to build the house, and there is no proof that she knew that he was building a house to cost more than that sum, much less that he was contracting debts by such building, in her name, or to be charged against her property. There is not only no actual, but, also, no implied ratification of any act of Downing, in that respect, as the act of her agent, for an implied ratification must be based upon a full knowledge of all the facts. Cadwell v. Meek, 17 Ill. 220; Manufacturers’ National Bank v. Barnes, 65 id. 69; Farwell v. Meyer, 35 id. 40.

If it be conceded that Downing was the agent of Mrs. Tows, to build a house on her property, still it would not follow that his power to bind her was unlimited. An agent furnished with funds and instructed to build a house with those funds, has no implied power to build on credit. The mere possession of this property by Downing conferred no power on him to bind anybody’s interest but his own. Baxter v. Hutchings, 49 Ill. 116; McCarty v. Carter, id. 55.

It can not even be said there is satisfactory evidence that anybody but Downing was intended to be credited in the matter of this building. It is indeed positively affirmed by Tripp that the credit, at Downing’s request, was given to Mrs. Tows, but this is as positively denied by Downing, and the books of the petitioners tend to corroborate Downing. The petitioners are not only charged with knowledge by the record, but they actually knew that this lot belonged to Mrs. Tows. It was, then, incumbent on them, before they advanced money and furnished materials on her credit, to know that the party at whose instance they advanced and furnished them, was lawfully empowered by her to receive them on her credit. Had they observed this precaution, it may be that the house would not have been built,—it is-certain they would not have been losers. As it is, their loss is the result of their own negligence. The lien can not be enforced against the interests of Mrs. Tows. Had Downing any legal title or estate in the property, that title or estate might, undoubtedly, be sold. But he has none. The absolute title in fee is in Mrs. Tows. Downing is a mere tenant at sufferance. She may let him stay there a lifetime, or she may turn him out without delay. He has taken his chances, and built upon the property without any definite contract as to the time he shall be allowed to enjoy possession. The conveyance of the property would forfeit Downing’s tenancy, and terminate his interest. King v. Lawson, 98 Mass. 309; Palmer v. Bowker, 106 id. 317; Cunningham v. Holton, 55 Me. 36; Recklaw v. Schanck, 43 N. Y. 488; Squires v. Fithian, 27 Mo. 138; 1 Washburn on Real Prop. 582.

We see no cause to disturb the judgment of the Appellate Court, and it is therefore affirmed.

Judgment affirmed.