May, Purington & Bonner Brick Co. v. General Engineering Co.

Per Curiam: The Appellate Court, in disposing of the case, delivered the following opinion: “Section 4 of the act of 1874, in relation to liens, as amended by the act of 1887, in force when the alleged contract was made, provides: ‘Every creditor or contractor who wishes to avail himself of the provisions of this act shall file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, a just and true statement of account or demand due him, after allowing all credits, setting forth the times when such material was furnished or labor performed, and containing a correct description of the property to be charged with the lien, and verified by an affidavit,’ etc. (Hurd’s Stat. 1893, p. 930; Sess. Laws of 1887, p. 219.) “The statute with regard to liens is in derogation of the common law, and the Supreme Court has frequently decided that it must be strictly construed. Cook v. Heald, 21 Ill. 425; Brady v. Anderson, 24 id. 111; Stephens v. Holmes, 64 id. 336; Canistus v. Merrill, 65 id. 67; Belanger v. Hersey, 90 id. 70; Butler v. Gain, 128 id. 23; McDonald v. Rosengarten, 134 id. 126; Williams v. Vanderbilt, 145 id. 238; Griffin v. Booth, 152 id. 219; McIntosh v. Schroeder, 154 id. 520. “In Cook v. Heald, supra, the court uses the following language, which is quoted with approval in subsequent cases: ‘The lien is given by statute and is in derogation of the common law, and is opposed to common right, and should be strictly construed. The remedy is cumulative to the ordinary remedy given by the common law, and as it is a privilege enjoyed by one class of the community above that of all others, to be available the party seeking to enforce it should bring himself within the terms of the statute.’ In Brady v. Anderson, supra, the court say: ‘This lien, like all others of the same character, should be fairly enforced when the party brings himself within the provisions of the statute, but it should not be extended to cases falling within the reason but not provided for by the language of the statute. ’ “The provision in section 4, 'supra, that the statement required by the section shall set forth ‘the times when such material was furnished or labor performed,’ is material and imperative. (Campbell v. Jacobson, 145 Ill. 389.) In the last case the court held that an omission to state in the claim of lien the time when the material was furnished and labor performed was fatal to the claim, saying, among other things: ‘A mechanic’s lien does not exist' and is not enforceable of common right, but is purely a statutory lien, and can be maintained only upon those conditions which the statute imposes.’ “In the present case, the statement filed July 5, 1893, verified by the affidavit of B. W. May, alleges that the statement of account ‘is a just and true statement of the account due May, Purington & Bonner Brick Company,’ etc. This statement shows that the last of the brick was furnished March 13, 1892. It is stated in the bill that the price of the brick became due and payable the 10th day of the month succeeding the last delivery of brick, which would be April 10, 1892, in accordance with the statement filed with the circuit court clerk July 5, 1893, more than fifteen months after April 10, 1892. It stands confessed by the amendment of appellant’s bill that the statement in its claim of lien of the times at which the brick was furnished is untrue in fact, and if an omission to state any time is fatal to a claim of lien, we cannot perceive how it can be held that a false statement of the time,—a statement variant from the true time by twelve months,—can be held to be a compliance with the statute. The statute requires a true statement, verified by affidavit, of the time when the material was furnished, and if the omission to make such statement is fatal, how can it be held that a false statement of the time is not fatal? Certainly a false statement is not within the terms of the statute—is ‘not provided for by the language of the statute,’ to use the language of the Supreme Court in Brady v. Anderson, supra. “We are aware that this construction is strict, and that it may appear a great hardship to appellant to so construe the statute, but in view of the decisions of the Supreme Court, which we regard as in entire harmony with the law applicable to statutory liens, we cannot escape the conclusion that the error in appellant’s claim of lien is fatal to the claim. Jones says of statutory liens: ‘The courts cannot extend the statute to meet cases for which the statute itself does not provide, though these may be of equal merit with those provided for.’ (1 Jones on Liens, sec. 105.) ‘A statutory lien can exist only when it has been perfected in the manner prescribed by the statute authorizing it. ’ (Ibid. sec. 107.) “Appellant’s counsel contend that the amendment of the bill alleging that the date 1892 was inserted by mistake, and that appellees well knew the times when the brick was furnished, cures the error. In this view we can not concur. Nothing could cure the error in the claim filed with the clerk of the circuit court within the time prescribed by the statute. (McDonald v. Rosengarten, 134 Ill. 126.) Section 4 provides: Any person having filed a claim for a lien as provided in this section may bring a suit at once to enforce the same by bill or petition, in any court of competent jurisdiction in the county where the claim for a lieu has been filed. ’ The filing a statement as prescribed by section 4 being made a condition precedent to the bringing suit, it seems too clear for argument that the claim of lien cannot be amended, after suit brought, so as to affect the suit, and that no amendment of the bill could possibly cure any error in the claim of lien. The averment in the amended bill that appellees knew the times when the brick was furnished and could suffer no damage by the error in the claim of lien, can not, even though true, avail appellant. The lien claimed must exist, if at all, by reason of the appellant’s compliance with the provisions of the statute, and neither the knowledge nor the ignorance of appellees of the facts can affect the vital inquiry, has appellant so complied with the statute as to entitle it to a lien? VonTobel v. Ostrander, 158 Ill. 499, 503. “We are of opinion that the demurrer to appellant’s amended bill was properly sustained. The decree will be affirmed.” Concurring in the foregoing views and in the conclusion above reached, we adopt said views as the opinion of this court. Accordingly, the judgment of the Appellate Court is affirmed. Judgment affirmed.