Treloar v. Hamilton

Mr. Justice Farmer delivered the opinion of the court: The Appellate Court held, and we think correctly, that the rights of the parties were governed by the law in force at the time the contract was entered into. (Kendall v. Fader, 199 Ill. 294, and cases there cited.) This was February 2, 1895, and before the Mechanic’s Lien law of 1895 went into effect. The law in force at the time the contract was entered into required that a contractor desiring to avail himself of its provisions should file with the clerk of the circuit court a just and true statement of the account or demand due him, after allowing all credits. Under the law then in force suit was required to be commenced within two years after the filing of such claim, or the lien was vacated. Appellant contends, that as the first amendment to the appellee’s bill alleged the date of the filing of the statement as October 7, 1895, and the second amendment, which was made in December, 1904, changed the date to July 19, 1895, this was declaring upon a new cause of action, and was, in effect, the same as if a bill had been first filed in December, 1904, to enforce a mechanic’s lien, where the statement of the claim was filed in the circuit court more than two years before the filing of the bill, and that the court erred in not allowing him to answer the bill as last amended and set up and rely upon the Statute of Limitations. Merely changing the date at which the claim for lien was alleged to have been filed from October 7 to July 19 was not the statement of a new cause of action. (Eisendrath Co. v. Gebhardt, 222 Ill. 113.) The circuit court therefore properly denied appellant’s motion. It is also contended by appellant that the decree of the circuit court and judgment of the Appellate Court should be reversed because appellee’s claim did not show a just and true statement of the amount due him after allowing all credits; also because the building was not constructed in accordance with the plans and specifications, by reason of which appellant was damaged in a greater sum than the court found due as the unpaid balance under the provisions of the contract. Appellee admitted in his examination before the master that the appellant was entitled to a credit on the amount stated in the claim filed by him, of $153.75 for materials that had been bought and paid for by appellant with appellee’s knowledge and consent. The master found from the evidence that the failure to give this credit in the account was not intentional o on the part of appellee, but was a mistake. If this is true, then the failure.to state the correct amount due would not necessarily defeat the lien. Kendall v. Fader, supra; Hayes v. Hammond, 162 Ill. 133; Culver v. Schroth, 153 id. 437. The contract between .appellant and appellee made Newman, the architect, superintendent of the work, and required payments to be made, as the work progressed, upon his certificates, and his decision, when differences arose between the parties, was to be binding on them. Appellant contends that there was collusion between the architect and appellee; that they conspired against appellant that the work should be done in a different manner and with different materials from that provided in the contract, and that the certificates issued by the architect were fraudulent and not binding on the appellant. The master found from the evidence and reported contrary to this contention. Upon' the proposition of appellant that the building was not constructed of the materials nor in the manner required by the contract, the master reported that the evidence was conflicting and not reconcilable, but his conclusion therefrom was against the appellant. Upon the hearing before the court on exceptions to the master’s report the chancellor agreed with the master upon all the controverted questions of fact, entered a decree approving the master’s report and conclusions, and that decree has been affirmed by the Appellate Court. We have examined the testimony and find it very conflicting upon the material questions of fact in controversy, but we cannot say that its weight is clearly and palpably against the decree of the court. Unless we could so say we would not be 'justified in reversing the judgment and decree. Siegel v. Andrews & Co. 181 Ill. 350; Williams v. Lindblom, 163 id. 346. The judgment of the Appellate Court is therefore affirmed. Judgment affirmed.