Kendall v. Fader

Mr. Presiding Justice Freeman delivered the opinion of the court. This is an appeal from a decree in a mechanic’s lien proceeding. Appellee filed his cross-bill to establish a lien in his favor as general contractor, in a suit begun by the Tacoma Safety Deposit Company to foreclose a mortgage. The mortgage was itself subject to a prior lien in favor of appellants. The owner of the property contended that the building was not constructed in accordance with the contract, and claimed that he was damaged to the amount of $1,000 by the failure to construct in accordance with the plans and specifications. The Circuit Court allowed him $245.45 damages. It is urged by appellants’ counsel that certain items included in the decree, are allowed in violation of the statute as well as contrary to the evidence. Objection is made to an allowance of ten per cent of the whole amount found due the contractor for solicitors’ fees, which appellee seeks to justify under the provisions of section 18 of the mechanics’ lien act of 1895. The original contract was made October 25, 1894, and the work was begun, it is said, not long after that date. The mechanics’ lien act at present in force was approved June 26, 1895, and went into effect immediately. It contains a proviso that section 40 of said act, repealing former lien laws, “shall not be so construed as to affect any rights existing or actions pending at the time this act shall take effect.” The contract and the subsequent amendment thereto having been made under the prior statute, the law then in force must be deemed to have entered into and formed a part of such contract, and the latter must be construed and enforced in accordance with the law as it then existed. To hold that contracts under the old law can be governed by the statute subsequently enacted, would be to construe that statute as an act impairing the obligation of contracts, in violation of the constitution. Andrews & Johnson Co. v. Atwood, 167 Ill. 249; Culver v. Atwood, 170 Ill. 432; Weber v. Bushnell, 171 Ill. 587. In the last case it is said (p. 594), “ the remedy may be controlled by the law of 1895.” It is urged for appellee in the case before us that section 18 of the act of 1895, providing for a reasonable attorney’s fee not exceeding ten per cent to be taxed as part of the costs, relates merely to the remedy, and is therefore properly applicable to suits for the enforcement of liens, even those arising under the prior statute. It is well settled that remedies which the law provides to enforce contracts, constitute no part of the contracts themselves, and are within the control of the legislature. Smith v. Bryan, 34 Ill. 376; Templeton v. Horne, 82 Ill. 491; Woods v. Soucy, 166 Ill. 407-414. But the decree in the case before us goes further than the mere allowance of solicitor’s fees. It adds the sum allowed for such fees, viz., §131.54, to the amount found by said decree to be due appellee, and decrees him a first lien upon the premises for the total so made up. This is in effect making a new contract for the parties which they did not make for themselves. It charges the property for payment of such fees. Under the contract and the law which entered into and formed a part of it when it was made, no lien for solicitor’s fees was provided. To hold that such lien could be given by the statute subsequently enacted would be not to extend appellee’s remedy, but to charge the property for his benefit with an additional incumbrance. The remed}'- remains the same with or without solicitors’ fees. The allowance of such fees as a lien compels the property to pay for the enforcement of his remedy, and it was not so nominated in the bond. The allowance was, we think, clearly improper. It is urged on the part of appellants that the sworn statement of claim filed by appellee is insufficient in that it fails to show between what dates the work was done. It states that by the original contract, dated October 25,1894, and which originally provided for three houses, including the one involved in this controversy, the work was to be commenced on or before April 30,1895; that February 18, 1895, the contract was amended by “ a further agreement in writing,” so as to cover only one of said houses, and that “ immediately upon the execution of the said contract this claimant proceeded to erect the said building according to the terms thereof and completed the said building on or about the 20th day of November, 1895.” We regard the statement as sufficient in that respect. The contract was entire, and it states, we think, with sufficient clearness, that the work was immediately commenced upon the execution of the amended agreement of February 18, 1895, for the construction of the one instead of three houses, and that the building was completed November 20, 1895. The words “ on or about,” while weakening the positive force of the statement, do not contradict it, and may, in this connection, be treated as surplusage. The work was done under an entire contract. Certainty to a common intent is all that is required. Springer v. Kroeschell, 161 Ill. 358-365; Hayes v. Hammond, 162 Ill. 133-136. It is urged as fatal to appellee’s claim that the sworn statement contains a charge for non-lienable items and extras. It appears to be true that the statement of the lump sum claimed to be due, was somewhat larger in amount than was allowed appellee by the decree. It does not appear but that appellee believed and still believes himself entitled to a lien for the whole amount, so claimed to be due, except that as to one item of $10 he admits that he failed to make a proper credit. But such a mistake, and the fact that the court upon the hearing disagreed with him as to another item of $60, for which in good faith he claimed a lien, do not necessarily constitute such a violation of the requirements of such statement as to make it invalid. Where there is no wrong intention, and where no party is thereby prejudiced, and especially where the item is easily separable from the residue of the indebtedness, the mistake is said, in Culver v. Schroth, 153 Ill. 437-446, not to be sufficient of itself to vitiate the statement and defeat the lien. Other objections are urged to the decree, which we have carefully considered, but do not deem it necessary to discuss in detail. Finding no error, other than the allowance of solicitor’s fees, the decree will be reversed as to such allowance only, but otherwise affirmed; and the cause will be remanded to the Circuit Court with directions to correct the decree by striking out such allowance. Affirmed in part and reversed in part and remanded with directions.