Orr & Lockett Hardware Co. v. Needham Co.

51 Ill. App. 57

• Court: Appellate Court of Illinois
• Decided: July 13, 1893
• Status: Published

Opinion

Mr.- Justice Gary

delivered the opinion of the Court.

This is an appeal from the decree of the Circuit Court, sustaining a demurrer to, and dismissing for want of equity, a petition for a mechanics’ lien filed by the appellant against the appellees.

The Needham Company is sued as owner, with whom the contract was made, and the only showing of any interest in the premises by the other appellees, is the averment in the petition that they “ have or claim some interest.” Such an averment is no admission that in fact they have any interest; the burden is upon them to show it.

Section 35 of the lien act, whether as amended J une 22, 1891, or before being amended, has and had no reference to a merchant, as in this case, supplying materials only. If a corporation supplying steel beams for a modern building claim a lien, can it be necessary for the corporation to copy its pay roll of thousands of employes in a statement, and give it to the owner of the building ? The manifest object of that section is only that the owner may have notice of all persons who might themselves assert a lien.

That the statement or claim filed in the attempted compliance with section 4 is not good, may be conceded, but as no compliance with section 4 is necessary, except for the protection of persons named in section 28, the question of its sufficiency does not arise until it appears that there are such persons. The subject has been recently discussed here in Moore v. Parrish, 50 Ill. 233.

, The appellees make no other question as to the right of the appellant to a lien, than neglect to comply with sections 4 and 35, and upon that, on the facts now shown, they are wrong.

The decree is therefore reversed and the cause remanded.