Friebele v. Schwartz

Mr. Presiding Justice George W. Thompson delivered the opinion of the court. In April, 1909, Samuel Schwartz leased to Patrick Crowe for a term of one year ending May 1, 1910, certain premises, known as the Park Hotel, in the City of Highland, to he used as a hotel and sanitarium. The building was a three story brick with a two story frame addition. In June, 1909, Crowe entered into a contract with Friebele to paint the outside of the building and the fence and to furnish the necessary material. On September 23, 1909, after the work was done Friebele filed a bill against Schwartz and others to establish a lien on the premises for the sum of $321.70, the cost of the improvements. Gust Ostrand filed an answer claiming a lien for $80 for plumbing done in the building at the request of Crowe. Schwartz filed an answer denying the allegations of the bill and that he had consented to, or knew of the improvements. The cause was referred to the master who reported the evidence with his conclusions, that there was due Friebele $321.70 with interest from August 1, 1909, and that there was due Ostrand $64.35 with interest from August 1st and that Crowe with the knowledge of Schwartz, the owner, had made the contract with Friebele for the improvements made by him, and that Schwartz had knowingly permitted Friebele to furnish such material and labor, and that Schwartz knowingly permitted Ostrand to do the work and furnish the material for which he claimed a lien. The court approved the findings of the master and entered a decree for a lien in favor of each of the lien claimants. Schwartz appeals and insists that the appellees are not entitled to a lien but does not question the amounts decreed to be a lien on the premises. The lease states that the premises are in good repair and the tenant covenants to keep them in repair. The evidence shows that the premises were out of repair and needed painting. Crowe testified that he told Schwartz ten days before he let the contract to Friebele that he was going to have the building painted and that Schwartz told” him to go ahead. The proof by several witnesses is that Schwartz was about the building while the work was being done, and directed the painters in their work, telling them to putty the cracks and nail holes, and in various ways showed his interest in the work. One of the witnesses testified that while working on the building he said to Schwartz “You are getting the building-fixed up pretty nice,” and Schwartz replied “Yes, that is good; Crowe is putting it in good shape; it needed it pretty badly and they are making- a nice job and I have no kick coming.” There was a brewery and saloon sign on the building- and Schwartz told one witness it would take at least three coats to paint the sign over. Ostrand testified that Schwartz was at the building when he began work on July’ 2nd and when he was endeavoring- to find the sewer Schwartz showed him where it was. Schwartz denies the statements made by the witnesses, but the evidence is overwhelming- that he was about the building while the work was being done and not only did not object but gave instructions to tbe men doing tbe work as to wbat they should do. Appellant contends that Ostrand was a subcontractor and that bis claim for a lien was barred by bis failure to give notice to appellant of bis employment to do tbe work witbin sixty days, and by bis “failure to file a claim with tbe recorder witbin four months from tbe time of tbe completion of tbe work or tbe failure to file an answer in tbe nature of an intervening petition witbin four months,” from tbe time tbe work was completed. Tbe evidence clearly shows that Ostrand was an original contractor and not a subcontractor. Under section nine of tbe Lien Act, Ostrand, an original contractor, bad two years witbin which to bring bis suit as against appellant. Tbe statute (section seven) provides that “No contractor shall be allowed to enforce such lien against or to tbe prejudice of any other creditor, or encumbrancer, or purchaser, unless witbin four months after completion * * * * * *he shall either bring suit to enforce bis lien therefor or shall file with tbe clerk of tbe circuit court;” but such claim for lien as to tbe owner may be filed any time after tbe contract is made and witbin two years after tbe completion of said contract. Tbe decree in favor of appellees is only against tbe owner and subject to the rights of prior creditors and encumbrancers. No error is assigned concerning tbe right of Friebele to have bis claim declared a lien prior to tbe lien of Ostrand and appellant is not interested in that question. Appellant also contends that because Crowe, a tenant, contracted for tbe improvements tbe law will not give a lien against tbe leased property. The lease contains a covenant on tbe part of tbe tenant, that be will not permit any alterations of, or upon any part of tbe premises, and appellant urges that this is a covenant not to make repairs; it also contains a covenant to keep tbe premises in repair. Tbe appellees had no knowledge of the provisions of the lease. A provision in a lease of which third parties had no knowledge, that a lessor’s interest shall be exempt from mechanics’ liens, is void as against snch third parties for the reason such a provision would be an' attempt to set aside the law of the land. Crandall v. Sorg, 198 Ill. 48. Appellant cites numerous authorities, to the effect that a tenant cannot render the property of the landlord liable to a mechanics’ lien. These authorities are based on the statute prior to 1895, which provided “That any person who shall by contract express or implied or partly expressed and partly implied with the owner of any lot” etc. Since 1895, the statute contains the further clause “or with any one whom such owner has authorized, or knowingly permitted to contract for the improvements” etc. Under the present statute an owner, knowing an improvement is being made, must object to the improvement, otherwise he knowingly permits the improvement and thereby consents to the party being entitled to a lien. Haas Electric Co. v. Amusement Co., 236 Ill. 452; Wertz v. Mulloy, 144 Ill. App. 329. The evidence shows that both lienors were original contractors and establishes the fact that appellant authorized or knowingly permitted Crowe to contract for the improvements. The decree is affirmed. Affirmed.