Pirola v. W. J. Turnes Co.

Mr. Justice Scott delivered the Opinion of the court: Appellant, a sub-contractor, sought to enforce a lien under the provisions of paragraph 37, chapter 82, of Hurd’s Revised Statutes of 1908, which provides, in part, as follows : ■ “Any person who shall furnish material, apparatus, fixtures, machinery, or labor to any contractor for a public improvement in this State, shall have a lien on the money, bonds or warrants due or to become due such contractor for such improvement: Provided, such person shall, before payment or delivery thereof is made to such contractor, notify the officials of the State, county, township, city or municipality whose duty it is to pay such contractor of his claim by a written notice. It shall be the duty of such official so notified to withhold a sufficient amount to pay such claim until it is admitted, or by law established, and thereupon to pay the amount thereof to such person, and such payment shall be a credit on the contract price to be paid such contractor.” The bill averred, but neither answer admitted, the giving of the required notice. There is in the record no evidence that it was given. Appellant could not obtain the relief sought unless he had given the required notice prior to the filing of the bill. (Butter v. Gain, 128 Ill. 23; Shaw v. Chicago Sash, Door and Blind Manf. Co. 144 Ill. 520.) It is said, however,, that as Cook county did not except to the master’s report and has not questioned the decree of the superior court, appellee cannot be heard to complain that appellant did not serve the notice upon the county. The court could not rightfully decree that money payable by Cook county to appellee should be paid to appellant except the proof showed the existence of an enforcible lien. Appellee therefore has the right to present this question. Appellant, by his brief in reply, states that the appellee did not object or except to the master’s report on the ground that the service of the notice had not been established. This point was not made by the original brief of the appellant, and for that reason he may not insist upon the same by his brief in reply. We have, however, examined the objections and exceptions to the master’s report and think the question was properly thereby raised. The judgment of the Branch Appellate Court will be affirmed. , rj~ , judgment affirmed.