Miller v. Calumet Lumber & Manufacturing Co.

121 Ill. App. 56, 1905 Ill. App. LEXIS 345

• Court: Appellate Court of Illinois
• Decided: May 29, 1905
• Docket: Gen. No. 11.968
• Status: Published

Opinion

Mr. Justioe

Brown delivered the opinion of the court.

A motion to dismiss the appeal or to affirm the decree of the Circuit Court with statutory damages was made by the appellants in this cause soon after it was entered in this court. The motion was reserved to the hearing in due course. It is now denied. We have considered the appeal on the merits. The objections made to this course because of the alleged informalities in the transcript of the record, we do not think are well taken. By the filing of an additional record by appellants on their suggestion of diminution, and by their also filing under leave of this court the transcript on the former appeal, anything in these objections which might otherwise be material has been met.

The first of the alleged errors of the Circuit Court which is insisted on and argued by the appellants’ counsel in this appeal, is that the complainant by its amended bill and the intervening petitioner by its amended petition have each made an entirely new case, distinct and different from the cases set up by the original bill and original intervening petition, and that since the amended bill and amended petition were not filed within four months after the dates fixed for final payment under the contracts set up therein, respectively, the complainant and intervening petitioner are barred from maintaining this suit. We do not so view the matter. We think the Circuit Court was right in holding that no new or different causes of action were stated in the amended petitions. They asked for a mechanic’s lien, under the statute of Illinois, against the property of certain defendants; the original petitions had asked for the same lien against the same premises. The original and amended petitions were based on the same contracts between the owners and the original contractor, and the same contracts between that original contractor and the petitioners, and described those contracts and the work and materials they respectively called for in the same way. The amended petitions made no new or different parties. We do not see how it can be successfully contended that the later petitions are anything more than the less defective and more artificial method of stating their claim, which is always allowed by way of amendment to parties plaintiff, without rendering them liable to the consequences of having stated a new cause of action.

The gist of the reasons given by the Branch Appellate Court when it reversed the former decree in this cause, was that the amount due from the owner to the original contractor must be ascertained and found before there could be a decree in favor of the claimants. “In this case,” the court says, “the amount due from the owner to the contractor is not found or declared in the decree, nor is there any evidence upon which such a decree can be based.” It is true that the court also says, “Neither the petition nor the intervening petition' comply with the requirements of section 32,” but that the court did not think that their amendment would be made futile and ineffective by the four months’ limitation is shown by its action in, of its own motion, granting leave for such amendment. It may be conceded that the Circuit Court was bound by this action only to allow the amendments, and had power to have afterward declared them useless, but in so doing it would certainly have disagreed with the Branch Appellate Court. We agree with the view of that court and of the Circuit Court. The underlying purpose of statutory limitations is to prevent the unexpected enforcement of stale claims, concerning which persons interested have been thrown off their guard by want of prosecution. This is especially true of the short limitations in lien laws. Nothing could be more different from such a situation than the one in this case.

The next contention of the appellants to be noticed is that the contract between Frink and the Calumet Lumber and Manufacturing Company shows on its-face that it was not in pursuance of the purposes of the original contract between the Millers and Frink, and therefore does not fall within the Lien statute. The ground for this argument is that the Calumet Company contract (which was oral) included (by reference) the terms of an endorsement upon the estimate on which it was based, to the effect that the delivery of the material furnished was to be completed by the Calumet Company within four months from June 2d, 1901, while the contract .between the owners and Frink provided that the entire building should be completed on or before September 1, 1901. Hence' it is urged the first could not be “in pursuance of the purposes” of the second.

• We do not think this conclusion follows. The same estimate which contains “the time memorandum” shows on its face that the materials were contracted for to be delivered to the appellants at the premises involved in this suit, and were so delivered there. The larger part of them had been delivered before September 1, and that part -of them delivered after September 1 was so delivered in compliance with the direct request of the appellants after Frink had abandoned the job—a request made in a complete recognition of the character of the Lumber Company’s contract—as “in pursuance of the purposes” of Frink’s contract with appellants.

The contract between Frink and the Calumet Lumber Company was not inconsistent with the contract between appellants and Frink. There was nothing in it to prevent the Calumet Lumber Company from delivering all the material before September 1, 1901. It simply provided a date before which it must be delivered, or the contract would be broken. The material was presumably to be furnished as called for, and a time limit might be as much for the protection of Frink as for the vendor’s, in order that he might not be overrun with material before he was ready. He may have known that there was no doubt of his being able to get the material as rapidly as he could possibly need it. At all events, as it has been decided in Von Platen v. Winterbotham, 208 Ill., 205, that a subcontract in which there is no time limit whatever may be held to be in pursuance of the purposes of an original contract in which a time for completion is specified; it certainly is not the law that a subcontract in which such a time limit is provided, although the time allowed runs a little beyond that allowed by the original contract, cannot be so held. This objection does not seem to be urged against the intervening petitioner, the Chicago Heights Lumber Company, although by its contract, as alleged, it was to complete the delivery before September 24, 1901. Perhaps this is because the proof shows that its material was in fact all' delivered before August 26. In any event we do not regard the position of appellants in this regard tenable as to either of the appellees’ contracts, and it is not necessary for us to consider whether or not it is still open to them to take it in this second appeal.

The third objection of the appellants to the decree is that the -notice on which the Chicago Heights Lumber Company’s right to a lien depends is not in compliance with the statute. We see no merit in this point. Counsel say that the notice does not state “when the material was to be. delivered,” nor that there was “any fixed time when it was to be delivered,” nor “when payments were to be made.” The statute does not require that the notice should contain this information. It does provide that it shall state when" the amount claimed to be due became due, and the Appellate Court of the Second District in Hurtt v. Sanders Bros. Mfg. Co., 99 Ill. App. 665, cited by appellants, decided that a notice was defective which did not contain such a statement. The language used in the opinion in that case is simply the demonstration by the writer of it that the notice neither contained the required statement, nor, in other allegations, the means of obtaining the information.

The next complaint of appellants is that the reasonable worth of the work and materials furnished by Frink before his abandonment of the job has not been established by competent proof. The complaint is not well founded.

It is needless to discuss the application of the doctrine of Sohns v. Murphy, 168 Ill., 346, to section 32 of the Act of 1895, for we are of the opinion that the testimony of the three witnesses on this matter (and especially that of Mr. Decker), is amply sufficient to sustain the decree under the most rigid construction of the law that appellants could claim. It will not be presumed to have been the intention of the Legislature to make impossible a remedy for which it was carefully providing. We may say, moreover, that we think Sohns v. Murphy greatly in point.

It is further objected to the decree that it does not find the amount due from the owners to the original contractor. We think that the findings of the decree, in which are incorporated the findings of the master’s report, do sufficiently, under section 32 of the Lien Act and under the opinion of the Branch Appellate Court in the former appeal, “find and declare” how much is due from the owners to the contractors. That sum, by the finding of the master, is said to be $4,500, and it is also found that all payments, if any were made, to Frink are void under the law, and are therefore as though not made, so far as the appellees are concerned. This ascertains and fixes the amount due as $4,500, and the claims of the original and intervening petitioners not aggregating this amount, nothing more seems necessary to determine their rights under section 32. That section says that a “balance is to be divided between the claimants in proportion to their respective interests to be ascertained by the court.” That “balance” is to be the amount “the work and materials shall be shown to be reasonably worth according to the original contract price”—in this case found to be $4,500—less “so much as has been rightfully paid on said original contract by the owner,” and less damages, if any, “that may be occasioned the owner by reason of the non-fulfillment of the original contract.”

The master and court have found on sufficient evidence, it would appear, that under the definition in section 33 of the Act of rightful payments, no money has been rightfully paid on account of this building so far as the appellees’ interests are concerned. It has also found that no damages to the owners appear. These findings fix the amount due to the contractor from the owner at $4,500.

It is urged that payments may have been made on account of this building by the owners, not “to the contractor or his order,” and that these, under section 33, would be rightful, and that there might have been damages not shown by the evidence, which payments and damages, if there were such, should have been deducted from the $4,500.

It is enough to say concerning this, that by the evidence before them, the master and the court were justified in their findings that there were no such payments or damages proven, and that it was the duty of defendants, after the case made by appellees was closed, to prove any such payments or damages, if any such there were.

The showing made by appellees was quite sufficient prima facie for recovery under the Act; and it would he a highly unreasonable construction of that Act which would put upon the parties plaintiff the burden of proving precise and specific negatives in matters concerning which the parties defendant had all the information at hand, and the ability at once to refute the prima facie case if it were untrue. Particularly is this the case in regard to damages. It would be impossible for petitioners to negative all possible damage which might in imagination spring from the abandonment of the original contract, but very easy for defendants to show it if it existed. It cannot be properly said that the indefinite evidence, claimed by appellees to show that the premises were not ready for occupancy until October, proved the stipulated damages under the original contract of $10 a day for a number of days. How much of the delay, if there were ainy, was due to the abandonment of the contract, and how much to the fault of the owners, if there were such fault, in not paying the contractor, or how much to alterations (which the contract provides may extend the time), if there were any, are matters which do not appear. If the Act, when speaking of “damages that may be occasioned the owner by reason of the non-fulfilment of the original contract,” can be in any event construed to refer to stipulated damages for delay in the nature of a penalty, which we do not believe, certainly it is for the damaged party to show his right to them under the contract.

It is further suggested by appellants that because the decree does not include Frink, who was proven to have left the jurisdiction and to be in parts unknown, it cannot stand against the property of appellants because the statute provides that “the decree shall be entered against the owner and • contractor.” Such a construction of the Act is unreasonable. The decree seems to us, under the proof made of the contractor’s absence, sufficient and proper in form. The objection noted is not among the assignments of error, unless it may be considered as covered by the general one^ numbered 59.

It is argued that the depositions taken before the master before the first appeal were improperly admitted in evidence by him at the last hearing. We do not think that there was any error in this. The rule in chancery (and a mechanic’s lien suit is a suit in chancery under our practice) undoubtedly is that depositions taken' in a prior suit, where the parties and issues are substantially the same, may be used. Counsel have cited no authority, and we know of none, which would render such depositions taken at a prior hearing of the same suit incompetent.

It is suggested that there is a difference in this regard between depositions taken under a dedimus and those taken before a master on a general order of reference. We see no reason why there should be, and the only authority cited by counsel (Daniell’s Chancery Practice) is to the contrary. Opportunity for cross-examination was given to and used by the appellants when these depositions were taken, and we see no injustice and nothing irregular in their use in the second hearing.

Objection is made to the allowance in the costs of the master’s fees for the first hearing. We do not think that section 18 of the Act, as argued by appellants’ counsel, prevents the exercise of the chancellor’s discretion in a case like this. The appellants were ultimately “the losing party,” and it was, in the opinion of the chancellor, “an equitable taxation of the costs of the proceedings,” to include these fees in the decree against them. We do not think we should be justified in disturbing it.

The decree of the chancellor in the Circuit Court will be affirmed.

Affirmed: