Murphy v. Harris

57 Ill. App. 351, 1894 Ill. App. LEXIS 294

• Court: Appellate Court of Illinois
• Decided: January 28, 1895
• Status: Published

Opinion

Me. Presiding Justice Waterman

delivered the-opinion of the Court.

The complainants having filed as a part of the bill a copy of the contract they made with Daniel Murphy, it was unnecessary that they should otherwise set forth in the petition the terms of the agreement under which the work was done.

Nor do we think the petition insufficient to base a decree upon, because the account annexed thereto appears to be against Daniel and Mary Murphy instead of against Daniel alone. '

If a discrepancy exists between the body of the bill and an exhibit thereto, the exhibit controls. Field v. Brokaw, 40 Ill. App. 271.

The verified statement made and furnished to Daniel Murphy of the persons with whom he had dealt, in obtaining the materials and labor used in the construction of appellant’s house, was in compliance with the act of June 16, 1887. The purpose of the statute was that an owner, before he paid the original contractor, might be informed as to the amount due or to become due to persons who might be entitled to liens upon the premises for work thereon done at the instance of the original contractor.

This purpose the statement given served. The statute did not, as is urged, require that the details of the contracts or arrangements with materialmen and workmen should be given.

Appellants made no objection to the statement, asked for no further information, permitting appellees to believe that so far as the knowledge given by this statement is concerned, it contained all the information desired.

Mrs. Murphy acted as her husband’s agent in the construction of these premises, and it being undisputed that the statement reached him, the delivery of it to her was sufficient. The statement filed with the clerk of the Circuit Court, although reading as an account against Daniel Murphy and wife, was a sufficient compliance with the act of May 31, 1887.

It is to be borne in mind that in the present action the rights of no incumbrancer, creditor or purchaser are concerned.

This proceeding is only against the owner of the improved premises and his wife.

FTo secret lien is here sought to be enforced.

Each of the defendants knew all that was being done and the only questions here presented are as to the amount due from Daniel Murphy, and the right to security—a lien therefor upon the premises occupied and owned by the defendants.

It is quité evident that the appellant, Daniel Murphy, by his conduct, excused appellees from their original contract obligation to complete the work by the 25th day of October, 1889. As by the terms of the contract the work was to be done to the satisfaction of C. M. Palmer, architect, appellants had no right,'without the consent of appellees, to place Mr. Palmer in a position where he no longer felt that he had power to act under the contract, and had not authority to issue certificates for the work as it progressed.

We see no sufficient reason for interfering with the decree of the Superior Court, and it is affirmed.