Western Valve Co. v. Quay-Dakin Co.

Mr. Justice Baker delivered the opinion of the court. In Wilcus v. Kling, 87 Ill. 107, Kling entered into a written contract with Wilcus and Vinsburg to build for them two buildings according to the plans, etc., of Architect Froyer, who was to issue certificates from time to time, reserving twenty per cent, of the contract amount until the final completion of the buildings, when on the exhibition by the contractor of all bills, the architect was to issue a final certificate for the balance of the twenty per cent. The architect never issued a certificate for the twenty per cent. The owners were garnisheed and after the service of the writ paid out two thousand dollars on orders drawn by Kling for materials and labor on the building appropriated before the service of the writ. It was held that the payment of such orders was an admission by the garnishees that they were indebted to Kling at the time the writ was served, and that because of such admission of indebtedness the garnishees were liable although Kling could, not have recovered because no certificate had been issued by the architect. We think the decision in that case must control the decision in this. Conceding that the Quay-Dakin Company could not, at the date of the service of the writs, have recovered because there then were unpaid claims against that Company for labor and materials appropriated in the performance of its contract with the garnishees, for which mechanic’s liens might have been established, the garnishees, without any lien having’ been established, paid for labor and materials furnished to the Quay-Dakin Company' before the service of the writs, more than the fifteen per cent, of the contract price retained by them under the terms of their contract with the Quay-Dakin Company. This, under the decision in Wilcus v. Kling, supra, was, we think, an admission by the garnishees of indebtedness to the Quay-Dakin Company at the time of the service of the writs.' It was because of their admission of indebtedness that the owners of the building were held liable as -garnishees in Wilcus v. Kling, although the principal defendant, the contractor, could not have maintained an action because of his failure to present an architect’s certificate. We think that under the rule announced in Wilcus v. Kling the garnishees were properly held liable because of their admission of indebtedness, and the judgment of the Circuit Court is affirmed. Affirmed.