Joseph T. Ryerson & Son v. Smith

Mr. Justice Baker delivered the opinion of the court: It appears from the petition of plaintiffs in error that the Porter Boiler Manufacturing Company, to whom they had furnished materials for the erection of certain structures on the .premises of the Chicago, Rock Island and Pacific Railroad Company and the World’s Columbian Exposition Company, in Cook county, became insolvent, and on the 9th day of November, 1892, made an assignment for the benefit of creditors to defendant in error. It also appears that on December 2, 1892, plaintiffs in error served notices upon both the railroad company and the exposition company, claiming their sub-contractors’ mechanic’s liens, under the statute, for the amounts then due them for the materials furnished, as' above stated. The Porter Boiler Manufacturing Company’s contract with the railroad company and its contract with the exposition company were both completed on the first day of January, 1893. The sole question presented for our decision is, whether or not; under the above state of facts, plaintiffs in error are entitled to the relief prayed for in their petition. In other words, were the notices served in time to give them liens under the mechanic’s lien laws of this State. It does not appear that any statement of its indebtedness to sub-contractors, mechanics, etc., was ever rendered by the Porter Boiler Manufacturing Company to either the railroad company or the exposition company, as provided for in section 35 of the mechanic’s lien laws, so that plaintiffs in error can claim nothing under that section, but are compelled to rely entirely upon their notices. Section 29 of the act in question is, in part, as follows : “Every sub-contractor, mechanic, workman or other person, who shall hereafter, in pursuance of the purposes of the original contract between the owner of any lot or piece of ground, or his agent, and the original contractor, perform any labor or furnish any materials in building, altering, repairing, beautifying or ornamenting any house or other building or appurtenance thereto, on such lot or on any street or alley, and connected with such building or appurtenance, shall have a lien for the value of such labor and materials upon such house or building and appurtenances, and upon the lot or land upon which the same stands, to the extent of the right, title and interest of such owner at the time of making the original contract for such house or the improvement; but the aggregate of all the liens hereby authorized shall not exceed the price stipulated in the original contract between such owner and the original contractor for such improvement.” Section 80 requires that the sub-contractor shall cause a notice, in writing, of his claim to be served upon the owner or his agent, and contains a proviso that “such notice shall not be necessary where the sworn statement of the contractor provided for in section 35 of this act shall serve to give the owner true notice of the amount due and to whom due.” In section 33 it is provided that “no claim of .any sub-contractor, mechanic, workman or other person shall be a lien under section 29 of this act, except so far as the owner may be indebted to the contractor at the time of giving such notice, as aforesaid, of such claim, or may become indebted afterward to him as such contractor.” It is hardly necessary to say, that statutes in derogation of common right should be strictly construed. Plaintiffs in error could have had no liens until service of notices as required by section 30. (Shaw v. Chicago Sash, etc. Manf. Co. 144 Ill. 520; Butler v. Gain, 128 id. 23.) Prior, however, to such service of notices, the Porter Boiler Manufacturing Company made an assignment for the benefit of its creditors. The notices, therefore, were insufficient to create liens; and especially is this so, since it does not appear that anything was due from either the Chicago, Rock Island and Pacific Railroad Company or the'World’s Columbian Exposition Company at the date’of the assignment. It is true that the assignee took the insolvent’s estate subject to existing liens and equities, but at the time of the assignment no liens or equities existed in favor of plaintiffs in error. The persons intended to be benefited by the statute must comply strictly with all its requirements before they can have any lien. See authorities cited supra. The petition of plaintiffs in error shows that they are not entitled to the liens claimed by them. The judgment of the Appellate Court is affirmed. Judgment affirmed.