National Home Building & Loan Ass'n v. McAllister

Mr. Justice Shepard delivebed the opinion of the Couet. This was a bill filed by appellants to foreclose a mortgage made by the appellee, Mollie O. McAllister. The appellees, John M. Graff, William M. Seymour, and John H. Forshew, copartners under the name of Graff & Company, were made parties defendant with the mortgagor, and answered asserting their right to a mechanic’s lien upon, the mortgaged premises. The decree that was entered found that there was due to the appellant $15,801.86 upon its mortgage, and that there was due to Graff & Co. $607.30, for which they were entitled to a mechanic’s lien against the mortgaged premises; that the whole value of the mortgaged premises was $15,000, of which the land was $4,000, and the improvements $11,000; that the sum due to complainants was a first lien on the land, but as to the improvements it was second and subject to the lien of Graff & Company for said sum so found to be due them. ' This appeal questions the correctness of the decree in the matter of priority, as between the appellant and Graff & Co., and nobody but the appellant complaining in such regard, we shall consider only what affects that single question. The contract of Graff & Co. with reference to the premises in question was to furnish and set up “ four hot blast furnaces ” in the building which constituted the improvement upon the mortgaged land. The affidavit which formed a part of the statement of claim for mechanic’s lien filed in behalf of Graff & Co., in purported compliance with Sec. 4 of the mechanic’s lien act, in force at the time of filing such statement, states: “ That the work in connection with the furnishing and the erection of the said furnaces for the said Mollie O. McAllister was commenced on the 10th day of August, 1893, and completed on the 3d day of December, 1893, as set forth in the said statement, marked Exhibit A, as aforesaid. Affiant further says that the amount of said statement, marked Exhibit A, and made a part of this affidavit, as aforesaid, was due on the completion of the work connected with the furnishing and erection of the said furnaces in the said flat building of the said defendant, Mollie O. McAllister,” etc. I The statement in said Exhibit A, as to the time of doing the work was as follows: “ The work in connection with the furnishing and erection of the said four hot blast furnaces in the said building having been commenced on the 29th day of July, 1893, and completed on the 3d day of December, 1893.” The provisions of sections 4 and 28 of the mechanic’s lien act, are, so far as is material in this connection, as follows: • “Sec. 4. Every creditor or contractor * * * shall tile with the clerk of the Circuit Court * * * a just and true statement or account or demand due him, after allowing all credits, setting forth the time when such material was furnished or labor performed. Sec. 28. No creditor shall be allowed to enforce a lien created under the provisions of this act, as against or tó the prejudice of any other creditor or incumbrancer or purchaser, unless a claim for lien shall have been filed with the clerk of the Circuit Court, as provided in section 4 of this act.” These two sections are in pari materia, and are tobe construed together. And in order that a contractor may enforce a lien under them- the statement provided by section 4, to be filed by him, must set forth “ as therein particularly described,” the time when the material was furnished or labor performed. McIntosh v. Schroeder, 154 Ill. 520. And it was held in the last cited case, following Campbell v. Jacobson, 145 Ill. 389, although without referring to that former decision, that the two sections apply to the original debtor with whom the contract was made, as well as to creditors, purchasers, or incumbrancers. The holding has been uniform that a statement of the time when the materials were furnished, is one of the requirements of the statute. McDonald v. Rosengarten, 134 Ill. 126; same case, 35 Ill. App. 71; Fried v. Blanchard, 58 Ill. App. 622; O’Brien v. Krockiniski, 50 Ill. App. 456. A statement, therefore, like that in this case that the mar terials and work were furnished between certain dates, or, as having been began on the 10th day of August, 1893, and completed on the 3d day of December, 1893,” as said in the affidavit, and as commenced on the “29 th day of July, 1893, and completed on the 3d day of December, 1893,” as said in the statement accompanying the affidavit, is not a compliance with the statutory requirement in regard to time. Ho one, except the appellant, finding fault with the decree, it will be affirmed in so far as the lien of Graff & Company is thereby established against the premises, but in so far as that lien is given, priority upon the improvements over the lien of appellant, the decree must be reversed, a reversal to that extent seeming to be all that appellant is entitled to, and the cause is remanded to the Superior Court, with directions to enter a decree accordingly, and give to appellant a first lien upon both land and improvements. Affirmed in part, and reversed in part, and remanded with directions. Additional opinion by Mb. Justice Shepaed. Since the foregoing opinion was filed we have seen the opinion of the Supreme Court in Blanchard v. Fried, filed May 12,1896, and recognizing the spirit of the decision there announced to be opposed to the views we have expressed in regard to the statement of the time when the materials and work were furnished and performed, we retract our holding in that regard, and hold that the statement, or claim for lien, was sufficient. So holding, necessitates our consideration of another question. The contract between Graff & Co. and Mollie O. McAllister was in the form of a written proposition and acceptance to do the work for $600, on which $50 ivas paid. At the time of contracting for the furnaces, Graff & Co. made an agreement with one A. E. Mick, who was the stepfather of the appellee, Mollie O. McAllister, and her agent in the matter, as follows : “ Chicago, July 31, 1893. This memorandum witnesseth, that Graff & Company have sold to Mollie O. McAllister four furnaces, including hot air stacks, pipes and registers, to put in building 7040 and 42 Eggleston avenue, through her agent, A. E. Mick, said work to be done for six hundred dollars. We further agree to pay said A. E. Mick two hundred dollars as commission as agent for making the said sale of four furnaces, per their proposition, signed July 29, 1893. Graff & Co., Smith & Bright, Managers, Per Frank Tully.” Regarding this commission contract, Frank Tully, who signed it for Graff & Co., and represented them in the matter, testified as follows: “ Q. Will you state how you happened to make this contract with Mr. Mick ? A. They (Mollie McAllister and Mick) Avere building this particular house and three others, and they Avere to have heating apparatus in each of them. I wanted to get the contract for all of the work, but he said it was not possible for him to give me the contract for all the houses at the present time, and he gave me the contract for this one, and then as the building progressed, he would make another contract for each of them, and would give me the work on them, making twelve furnaces in all, and there Avas a question arose about one of the buildings for heating by steam, and then the question of commissions came up in regard to the amount of commissions to be paid on this work, and Ave agreed upon it, which was this amount here I think, $200; but he had some personal matter that he had to take care of right away, and this first payment—this first contract I mean—and when Ave closed the contract for the remainder of the buildings, Ave would get the payment in full, although there Avas to be no commission out of that. Q. In other words, you agreed, as I understand it, to pay him $200 in consideration of his securing for you contracts for putting in furnaces, not only in the building on the premises involved in this suit, but any other building. A. There Avas other buildings, four altogether. Q. Was that the distinct and exclusive and only consideration supporting that agreement % A. Tes, sir.” It thus appears that the contract price of $600 for which Graff & Co. agreed to furnish the four furnaces in question, included a commission of $200, to be paid to the agent of Mollie O. McAllister for materials to go into the three other buildings, as well as into the one in question. It would be manifestly inequitable to allow to Graff & Co. a lien, as against the appellant, which shall include such commissions,- and it can not be held, either, that the statute contemplates a lien for any such object as against third parties. Heidenbluth v. Rudolph, 152 Ill. 316. The decree was right in all respects except as to the amount found to be due to Graff & Co. Such amount was the balance of $550, with interest from December 3, 1893, aggregating $607.30 at the date of the decree. That amount should be lessened by the sum of $200, and interest thereon from December 3, 1893, to the date of the decree on January 6, 1896, amounting to $220.90. The point is made that the “ work ” that was done, etc., includes only the labor, and not the materials, but we regard that as having too technical and constrained a construction. The decree is therefore reversed, and the cause remanded, with directions to the Superior Court to enter a new decree in all respects like the one appealed from, except by reducing the amount there of in accordance with this opinion. Reversed and remanded, with directions. Mr. Presiding Justice Gary. Regarding the opinion in Blanchard v. Fried referred to by Judge Shepard as being a step in the right direction, and in accord with what I said on my own account in the case as reported in 58 Ill. App. 622, I concur in the foregoing retraction, though I believe it to be contrary to McDonald v. Rosengarten, 134 Ill. 126. [Since the foregoing was written the advance sheets of decisions of the Supreme Court, issued as part 2 of Vol. 161, have come to hand, containing a report of Springer v. Kroeschell, at page 358, where an exception which we declined to consider (see 59 Ill. App. 434) is considered by the Supreme Court, and the ruling as to the sufficiency of a statement (p. 395) is in accord with our last opinion upon the subject. ■ •