Chicago & Riverdale Lumber Co. v. Russler

Mr. Presiding Justice Windes delivered the opinion of the court. The only question presented for consideration is as to whether the bill is sufficient to sustain a mechanic’s lien, the contract being verbal, and no specific time being alleged for the delivery of the material under the contract. Appellees rely for an affirmance of the decree upon the case of Kelly v. Northern Trust Co., 190 Ill. 401. We think this case has no application here, because "the court there had under consideration a written contract. Section 6 of the lien statute, in so far as it relates to liens under verbal contracts, is as follows: “ If the work is done or materials are furnished under a verbal contract, no lien shall be had by virtue of this act unless the work shall be done or materials furnished within one year from the date of the contract, and final payment therefor is to be made within such time.” We construed this part of the statute in a late case, Rittenhouse & Embree Co. et al. v. Barry et al., 98 Ill. App. 548, and held that it was sufficient to give a lien under a verbal contract, so far as it concerns the terms of the contract as to the point here in question, that it should provide that the work be done or materials be furnished within one year from the date of the contract, and that final payment should also be provided thereby to be made within the same time. We are of opinion that the allegations of the bill bring the case clearly, within the case cited supra. The substance of the allegations is that the contract was made June 14, 1898; that it was thereby agreed that the material was to be “ delivered within a reasonable time, to wit, within one year thereafter; ” that the last material was delivered September 30, 1898, and by the contract it was agreed that it should be paid for on January 15, 1899. The fact that no definite day was fixed for the delivery of the material is not important, in view of the allegation that it was to be delivered within a reasonable time, to wit, within one year after the making of the contract. In the case of Kelly, supra, and Freeman v. Einaker, 185 Ill. 179, it was held that the present lien act should receive the same construction in the respect here under consideration, viz., the time for the completion of the work and the time for final payment, as the lien act of 1845. The latter act was construed by the Supreme Court in the cases of Claycomb v. Cecil, 27 Ill. 497, and Reed v. Boyd, 84 Ill. 66, and it was held, in substance, that it was not necessary that a particular day for the completion of the work or payment therefor should be fixed by the contract, but only that the time fixed should not- be extended beyond the period limited by the statute. See, also, Cook v. Heald, 21 Ill. 425, and Cook v. Vreeland, 21 Ill. 435. The decree of the Circuit Court is reversed and the cause remanded.