Prendergast v. McNally

Mr. Justice Windes, after making the foregoing statement, delivered the opinion of the court. Appellees have moved to strike this cáse from the docket, because they claim a part of the record was not properly certified. The motion is inapt, and is denied. The proper motion would have been to strike from the record that portion which was claimed not to have been properly certified. Appellees also claim that as Prendergast, Eilenberger and Burkhardt & Son were defaulted and the bill taken as confessed as to them in the foreclosure case in the Superior Court, and as Horton failed to make any proof in that court, and did not except to the Superior Court master’s findings, that even if their claims for lien are allowed, they must be held to be subject to the lien of Bastrup & O’Heill. This contention, we think, is not tenable, because in the final decree it is found that the two causes were consolidated and heard as one cause (no objection being made by any of the parties), and the confession of Prendergast, Eilenberger and Burkhardt & Son was set aside, and Horton’s proof of claim was made before the Circuit Court master, who made a finding in Horton’s favor, and also that all issues in said consolidated cause were made up and complete as if both were one case commenced and pending in the Circuit Court. It would have been better practice for these claimants, except Horton, to have either filed answers in the foreclosure case, setting up their claims, or had an order entered in the Circuit Court providing that their bill, cross-bill and intervening petition stand and be considered as their answers to the bill in the foreclosure case, but we think their pleadings, under the decree, are sufficient to set forth their rights, and appellees should not now be allowed an advantage because of this technicality. Appellants, except Horton, claim that the master’s findings and recommendations as to their claims should be sustained, and that the chancellor denied their liens only because no specific property was described in either of their contracts, and Horton contends the master’s findings as to his claim should be sustained, except that it should not be postponed to the other liens for work and materials. There is nothing in the record from which it can be told that the claims, except Horton’s, were disallowed, because there was no description of property in the contracts on which the claims were based, the decree not showing that any specific exception to the master’s report was sustained or overruled. It no doubt was a great saving of labor to the successful counsel, as well as the chancellor, to have the decree dispose of the exceptions en masse, as it did, instead of specifying what exceptions were sustained and what overruled, as it should have done, but such a course is of no assistance to this court, and leaves us no alternative but to examine the report, evidence and exceptions in detail, to determine, if possible, if there is any basis on which the decree may be sustained. The chancellor should in some way, in a case like this, involving the great mass of pleadings, evidence, master’s reports and exceptions thereto, some 2,400 typewritten pages of record, make it clear, if possible, on what basis the decree was rendered. This generally may be done by passing upon each exception to the master’s report separately, or by making some statement in the record of the points of his decision; either practice or both, is to be commended. The appellants contend that the decree should be affirmed, because: 1st, the contracts, so far are they are in writing, are sealed instruments, executed by the claimants and John McNally, owner; 2d, that the agency of John McNally is not shown, nor any facts creating an estoppel as to Catherine McNally; 3d, that there are two separate buildings, and the proof and pleadings fail to show a right to separate liens; 4th, that the contracts have no reference to any particular lot of land; 5th, that the proofs do not sustain the pleadings; and 6th, that none of the claimants have complied with the statute in filing their statements of claim. The claims of Prendergast, Eilenberger and Burkhardt & Son, all being by virtue of contracts under seal between them respectively and John McNally, owner, and there being nothing on the face of the contracts to show that they were or were not intended to be made with Catherine McNally, they can have no lien by virtue of their contracts alone. The statute of 1874, under which these liens are claimed, gives the right to a lien only where the contract was with the owner of the land. Campbell v. Jacobson, 145 Ill. 389, 400; Walsh v. Murphy, 167 Ill. 230, and cases cited. The latter case seems to control as to these claims, in so far as they are based on the contracts alone. The court says: “ The rule in regard to instruments under seal made by an agent is, that in order to bind the principal and to make it his contract, it must purport on its face to be his contract, and the seal must purport to be his. An agent can not ordinarily bind the principal by a sealed contract executed in his own name, nor can the principal ordinarily avail himself of such a contract, and sue the other contracting party thereon. An undisclosed principal, whose authorized agent has made such a contract in his behalf, can neither sue nor be sued on it.” It can, therefore, make no difference that it appears from the master’s report, which we think is fully sustained by the evidence, that John McNally was the agent of his wife in making these three contracts. The point made that the Walsh case is different in its facts from these three claims, in that it does not appear that in that case the wife, the undisclosed principal, received and accepted the benefits of a contract executed on the part of the claimant, as is shown here, can not be maintained, because it appears she was the owner of the land and sold it after the lien was claimed to have attached. The improvement made by her husband on her land became a part of it, and it must be presumed that when she sold the land she also sold the improvement upon it. As to the remaining part of appellees’ second contention, that no facts are shown creating an estoppel, reliance is had on the case of Campbell v. Jacobson, supra. The pleadings in that case were not framed on the theory of estoppel, and the court held for that reason, and because the wife was not shown to be guilty of any fraudulent act, her mere non-action, standing by and permitting her husband to put up buildings on her lots, not positively forbidding him, nor taking legal means to prevent his doing so, but having no knowledge that he was holding himself out to be the owner, when she had given notice to all the world by placing her title on record, did not make a case of estoppel. The pleadings of Prendergast, Eilenberger and Burkhardt & Son all allege, in substance, that their contracts were made with John McNally in the belief that he was owner (and the contracts state that he was owner); that Mrs. Mc-Nally had full knowledge of, consented to, and approved of, all his acts and doings with reference to the making of the contracts and the construction of the building, and that they had no knowledge that she was in fact the owner until after their work was done and materials furnished, and that they relied upon the assumption of ownership by John McNally. It is true, they did not ask who was owner, and did not examine the records. They were justified in not doing so when McNally by his contracts said he was owner, and his wife knew all he was doing about letting the contracts, saw the contracts, and did the numerous acts found by the master, tending to show that she gave her entire approval to all her husband did. The preponderance of the evidence supports these allegations in their pleadings, and the master so found in substance. The Supreme Court said in the Campbell case, supra, speaking of the acts of the wife, “ if she had fraudulently permitted her husband to represent himself as such owner, as appeared in the case of Oglesby Coal Co. v. Pasco, 79 Ill. 170, the case would doubtless have been different,” thus clearly intimating that though the contract was under seal, her fraud would estop her. In Anderson v. Armstead, 69 Ill. 454, the court said: “ The law is familiar, that where the owner of property holds out another, or allows him to appear, as the owner of, or as having full power of disposition over the property, and innocent parties are thus led into dealing with such apparent owner, or person having the apparent power of disposition, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they have directly dealt, but they are derived from the act of the real owner, which precludes him from disputing as against them, the existence of the title or power he caused or allowed to appear to be vested in the party, upon the faith of whose title or power, they dealt. * * * It is an evident proposition, that a husband can not, with the connivance of the wife, commit a fraud upon another for the purpose of presenting her with the proceeds of the fraud, for their future use and enjoyment.” This language ivas used in a case where the wife was owner and allowed her husband, with her knowledge and consent, to make a contract with a painter to furnish materials and paint her house. The contract was performed and she was held to be estopped from denying that the contract was hers though made with her husband. She, it is true, held a deed for the lot, on which the house was, that was not recorded until four days after the contract, but the case, in principle we think, is applicable to the case at bar. So far as concerns the doctrine of estoppel, we see no reason for a different rule in case of sealed instruments from that of simple contracts. A court of equity should no more permit a fraud to be perpetrated under the guise of a sealed contract, than it would when the contract is verbal or in writing, but not under seal. See also Higgins v. Ferguson, 14 Ill. 269; Schwartz v. Saunders, 46 Ill. 18-24; Paulson v. Manske, 126 Ill. 78; Henderson v. Connelly, 132 Ill. 103; Baumgartner v. Hall, 163 Ill. 136. We think the work having been done under one entire contract, as to each of the appellants, and without reference to any particular part of the building as distinct from the other, the porph roof extending as a continuous roof across both lots, and the whole building heated by one steam plant, it constituted one improvement, and it was unnecessary that the claims for liens should be divided between the two lots. We think the intention as indicated by the contracts, plans, and the building, as actually constructed, make the improvement an entirety. The case of Moore v. Parish, 163 Ill. 93-100, we consider controlling on this point. See also Orr v. N. W. Mutual Life Ins. Co., 86 Ill. 260; Peck v. Standart, 1 Ill. App. 228; Berndt v. Armknecht, 50 Ill. App. 467-9. Appellees Bastrup & O’Heill would in no way be prejudiced by entire liens as their lien is an entirety on both lots. It is not essential th-at the written contracts should describe any specific piece of property. The proof shows clearly, and the master found, that the contracts were made with reference to the construction of a building upon the lots in question, and that the work was done and materials furnished on the building on the same lots. 2 Jones on Liens, Sec. 1327, p. 302; Burns v. Lane, 23 Ill. App. 504; Power v. McCord, 36 Ill. 214; Clark v. Manning, 90 Ill. 380. There may be some question as to whether the pleadings were sufficient in this regard, but appellants asked leave to file amendments in this respect, which amendments should have been allowed by the court. What has been said disposes of the fifth claim of appellees, that the proofs do not sustain the pleadings. As to the sixth contention, that none of the claimants have complied with the statute in filing their statements of lien, the facts in this respect are above set out in the master’s findings, and we think all the statements are a substantial compliance with the statute in reference to claims for lien and that appellants should not be denied their liens because of the technical objections made to them by counsel. The objection made that the statement of lien by Norton is not sufficiently verified and claims too much, is, we think, overcome by the following cases: Millers v. Schofer, 3 Denio, 60; People v. Southerland, 81 N. Y. 1; Langston v. Murphy, 31 Ill. App. 190; Scherman v. Pitcher, 36 Ill. App. 45; Cooper v. Payne, Id. 156; Hayes v. Hammond, 162 Ill. 133-7. Under the holdings of the Supreme Court in Campbell v. Jacobson, supra, Springer v. Kroeschell, 161 Ill. 365-8, and Hayes v. Hammond, 162 Ill. 136, that a substantial compliance with the statute in the filing of the statement of claim for lien is sufficient, we are of opinion that the objections urged against the statements of Prendergast, Eilenberger and Burkhardt & Son, are not tenable. The findings of the master as to the claim of Norton being, as we have said, sustained by a clear preponderance of the evidence, his claim should have been allowed, but not postponed to that of the other lien claimants, as recommended by the master, because of his not making known to them the condition of the title of the lots, which he knew at the time they made their contracts with McNally. We can not, in this proceeding, purely statutory as it is, consider the question of general equities as between the different claims for liens. Since the submission of this case, the parties having stipulated that the several amendments in appellant’s pleadings mentioned in this opinion be by this court considered as made, and the issues on the pleadings as thus amended, be considered as made, and appellees having waived and released all error in all courts concerning such pleadings, and the sufficiency thereof, and all questions of varianee between the allegations and proofs, the decree of the Circuit Court is reversed, with directions to enter a decree in accordance with the prayer of the pleadings of all the appellants, as thus amended, for the amounts found due them, and of the dates respectively, as found by the Circuit Court master. And it is further directed that the costs be taxed against the appellee, Catherine McNally. Beversed with directions.