Benner v. Schmidt

Gary, J. The plaintiffs in error, complainants below, by a written contract with the defendant, made April 21,1889, undertook to furnish and put in place (as their- petition stated), some iron for buildings of the defendant. The contract itself, attached as an exhibit to the petition, only required them to furnish the iron. During the year 1889 they did all that was required of them, either by their contract or by the mechanic’s lien law, but not punctually as the contract provided. Their material went into the building. If the defendant suffered any damage by the delay, he may recoup such damage out of the price, but the plaintiffs do not give away their iron by their delay. Nibbe v. Brauhn, 24 Ill. 268; 1 Ch. Cont., 1082. If there be any discrepancy between the contract attached as an exhibit and the description of it in the petition, the exhibit governs. Field v. Brokaw, 40 Ill. App. 371. Then the plaintiffs, showing by their petition that they did what the contract required of them, though not punctually, show that they are entitled to pay therefor, and being entitled to pay, and having complied with the statute as to statement and notice, they were entitled to a lien. Portoues v. Holmes, 33 Ill. App. 312; S. C. as Portoues v. Badenoch, 132 Ill. 377. It is the doctrine of this court that there is no peculiar rule of pleading, especially and only applicable to petitions for mechanics’ liens. The general rule quoted and applied in Portoues v. Holmes, 33 Ill. App. 312, has been often recognized as a general rule in the Supreme Court. Great Western R. R. Co. v. Hanks, 36 Ill. 281. Hothing alleged in this case is opposed to the third section of the Statute of Liens. As we infer from the argument of the defendant, it was held below, that the plaintiffs could have no lien unless they were punctual as to time. If literal performance of a provision of the contract, not going to the whole consideration, Avere necessary to give the lien, all variations or departures in matters of detail would prevent liens; a consequence never thought of by anybody. The demurrer to the petition was wrongly sustained. The decree dismissing the petition is reversed and the cause remanded. Reversed amd remanded.