Compound Lumber Co. v. Murphy

Mr. Justice Wilkin delivered the opinion of the court: It is insisted by plaintiff in error, that having fully complied with its contract to furnish material, and having delivered it upon the premises where it was to be used, it is entitled to a lien for the whole bill. Defendants in error, in opposition to this claim, insist that only a part of the lumber so contracted for was actually used in the construction of the building, and that a mechanic’s lien can only be enforced to the extent of materials actually used. This contention is disputed by plaintiff in error, and it becomes a question of fact whether the whole amount of material was actually used in the building. The master found that only §1300 worth of material was so used, and the Appellate Court concurred in that finding. ' Prom an examination of the testimony on this point we are inclined to think the evidence is sufficiently clear to warrant such a conclusion. We do not understand that the finding of the trial court differs from that of the master in this particular. It does not appear from the testimony what became of the remainder of the materials thus furnished; and whether they were removed from the premises or whether they still remain there, to be attached later, is not shown. -The rights of the parties to this cause must be determined according to the law as it existed prior to the act of 1895, which materially changed the law in relation to mechanics’ liens. It is well settled by the decision of this court under the law which existed prior to this revision, and the rule is founded in justice, that the lien sought to be established in this cause can only be enforced against the property to the extent of materials actually used in the construction of the building. Hunter v. Blanchard, 18 Ill. 318; also Chicago Artesian Well Co. v. Corey, 60 id. 73. Counsel for plaintiff in error insist that although it maybe found to be true that only a part of the materials was actually attached to the building, yet, under the contract to pay for material in cash when delivered, the $1600 paid would apply on the unsecured part, or the part for which no lien would attach, there being no direction as to the application of the fund,—that is to say, that where there are two debts, one of which is secured and the other not, if the party make no application of the fund the law will apply it to the unsecured part,—and counsel cite Wilhelm v. Schmidt, 84 Ill. 183, and Plain v. Roth, 107 id. 588, as supporting their contention. We think counsel err in seeking to apply this principle of law to the case in hand. As will be seen upon an examination of the cases cited, the court will take into consideration all the circumstances surrounding the parties, and will make the application of payment only when the parties themselves have failed to make it, and even then the application will be made only in accordance with equity and justice. Can it be said in this case that the master was wholly unwarranted in finding that the parties themselves applied the $1600 which was paid? We think not. It appears that the fund from which this payment was made was borrowed by the owner of the property and was paid out by Bogue & Co. in payment of general building expenses, the very object of this loan being to enable Annella Rood to construct this building. Clearly, the master was justified in holding that the payments by Bogue & Co. were made in furtherance of that object, and that it was the intention to apply this money, not to the general debts of Mrs. Rood, but in discharge of claims for labor and material which might become a lien against this property. Furthermore, Murphy and Cleary, who purchased this property, as well as all persons having claims against the building, had a right to expect that no lien would be enforced against it for material not actually used in its construction, such a claim not being recognized by the law at that time. From an examination of the whole case, and for the reasons stated, we are satisfied that the judgment of the Appellate Court refusing to decree a lien in favor of the Compound Lumber Company is right. It will be affirmed. Judgment affirmed.