Roulet v. Hogan

107 Ill. App. 164, 1903 Ill. App. LEXIS 415

• Court: Appellate Court of Illinois
• Decided: February 27, 1903
• Status: Published

Opinion

Mr. Justice Freeman

delivered the opinion of the court.

Defendants in error obtained a decree in the trial court giving a mechanics’ lien upon the premises in controversy. Plaintiff in error William Roulet claims title to the premises by warranty deed dated ¡November 29, .1897, from Frank Buchanan, who made the contracts with the defendant in error Hogan, which are set up in the petition. The petition for a lien was filed December 28, 1897, about a month after said Roulet acquired his title. He was made party defendant, and was duly served with summons. He did not appear, however, and was defaulted. The decree awarding the lien was entered January 13,1902. January 16th, Roulet’s appearance was formally entered by his then solicitor, and an application made for leave to file a petition. This was granted and a petition was filed by said solicitor, who had represented of record the trustee named in certain trust deeds on the property, and had also been looking after Roulet’s interests, though not before appearing for him of record.

A singular feature of this record is that another petition was filed on the same date, but by whom does not appear. Both petitions seek substantially the same relief, though differing somewhat in form. Their object is to set aside the decree entered and obtain a further hearing for plaintiff in error. The latter of them, however, which is not fathered by any solicitor of record, is the only one appellants’ counsel in this court appears to have deemed it worth while to allude to or to call our attention to in his abstract or original brief. It contains statements as follows: “That said defendants, excepting your petitioner, having been duly served with process” (an implied averment that the petitioner had never been served with process in the cause wherein the petition is filed); “that although it was known to the complainant that this petitioner was the owner of said premises, and that his deed of conveyance was of record in the office of the recorder in Cook County, Illinois, yet in all the proceedings in court and before said master, no notice was ever given to him, and no chance was given him to be present in court or before the master and hear the testimony of witnesses orexamine and cross-examine the same or to be heard before said master.” There is also a statement that the decree was obtained “without notice to your petitioner and without his knowledge.” The solicitor originally acting for plaintiff in error Eoulet, and who filed the first of the two petitions referred to, has withdrawn from the case. The petition which he filed, however, states correctly what the supplemental abstract filed herein shows to have been the exact fact, that Eoulet had been duly served with process, and that relying on - his warranter deed from Buchanan, and the promise of said grantor that he would protect him against this claim for a lien, he, Eoulet, allowed his default to be taken.” This, according to the affidavit of counsel for defendant in error, was the only petition presented to or acted upon by the trial court, and they assert that it was the only one they ever heard of until the other turns up in the record now filed in this court. However this may be, it is the duty of counsel for plaintiff in error to furnish a complete and reliable abstract. This has not been done. Under these conditions this court is compelled to resolve all doubts in relation to these contradictory petitions against that one for which no counsel appears willing to assume responsibility. It will be presumed, in the absence of anything to the contrary, that the trial court, when it overruled the petition of plaintiff in error, acted upon the petition which states the truth, rather than that which states what is not true. It is not probable that upon hearing, the false petition, if before the court, could have escaped the notice of court and counsel.

It is now sought to reverse the final decree and the order denying the petition of plaintiff in error Boulet.

It is first urged that the decree should be vacated because, it is said, the written contracts set up in the original complaint contain no provision as to the time of the completion of the work or making payment therefor, and that the work was never fully performed, referring to Freeman v. Rinaker, 185 Ill. 172. This seems to be -true as to the first two of the written instruments. The third or supplemental agreement, however, contains a provision wherein plaintiff in error Hogan “ agrees to put in two radiators in each flat in said Adams street building ” in condition to fire up on or before the 25th day of October, 1897, and he is not to be required to do any more work after that date, on the job, until he is paid a thousand dollars, and the balance agreed to be due him on his former contract shall be paid or satisfactorily secured. This we regard as an agreement for what purports to be a new consideration, that §1,000 shall, upon compliance by Hogan with his agreement to put two radiators in each flat on or before October 27, 1897, become due at that time, and that unless said sum shall be paid on that day, and unless payment of the entire sum of §1,855, to become “ due on completion of the Adams street job,” shall be made or satisfactorily secured on that day he shall be under no obligation to go on with work under any of the contracts until that is done. The agreements taken together may be considered as constituting a single agreement in writing containing a provision as to the time when that part of the work referred to in the supplemental agreement should be performed, and when the sum of $1,000 should be paid therefor. It is, however, of no special importance whether the contracts be so considered as constituting a single agreement or not. The result is the same, if we consider the last clause of the supplemental agreement as a new contract, inasmuch as that clause is itself a complete contract complying with the conditions of section 6 of the mechanics’ lien law of 1895. (R. S., Chap. 82, Sec. 6.)

It is argued by counsel for defendants in error that the first two of the written instruments referred to are not the actual contracts of the parties, “ but merely a memorandum changed subsequently, and which on its face does not pretend to contain all the terms or conditions.” We can not agree with this contention. These instruments purport on their face to be complete contracts, and such they must be deemed. The first one provides for final payment “ in ninety days from time the above work is finished,” but does not state when the work is to be finished. The second contract fails to state either when the work is to be done or when it is to be paid for. (See, Rittenhouse & Embree Co. v. Barry, 98 Ill. App. 548-560.)

The default of plaintiff in error Eoulet was regularly taken after due service upon him óf summons. “ It is a well settled rule that a defendant to a bill in chancery where a default and decree pro oonfesso have been entered may, on error, contest the sufficiency of the bill itself, or that its averments do not justify the decree.” Monarch Brewing Company v. Wolford, 179 Ill. 252-255, and cases there cited. As is said in that case, the decree must not be broader than the averments of the bill and those averments must be such as to justify the relief prayed. Under a decree pro oonfesso, however, a defendant can not, on error, allege a want or insufficiency in the testimony or evidence heard by the trial court. In the case before us the averments in the complaint are, as we have said, such as to justify some part, at least, of the relief prayed. In Brown v. Lowell, 79 Ill. 484-485, it was held that it is too late to raise in the reviewing court an objection that the petition in a mechanics’ lien proceeding failed to state when the work was to be completed, and when the money was to be paid, although on demurrer the objection would have been well taken; and it was held that the petition was not so defective as not to be sufficient to sustain the decree, the time for completion and payment having been proved on the trial. In the case at bar the decree finds the time for completion and payment, and the petition sets up the three contracts in full.

It is urged that plaintiff in error was entitled to notice of taking testimony, notwithstanding the decree was fro oonfesso as to him. It appears, however, from the petition of plaintiff in error, that he relied upon the promise of Buchanan, his grantor, to protect him against this mechanics’ lien proceeding, and he states that “ being afraid lest the fact that his default had been entered in said cause might possibly prejudice his rights therein,” he requested the trustee for certain mortgage creditors to protect his interests, and states that he is informed and believes that the solicitor for said trustee has at all times since then been actively engaged in protecting his interests in the litigation, as well as those of the trustee “ for whom only he appeared as solicitor of record.” He states that said solicitor filed objection to the master’s report and further narrates that his defense was solely one of law, and that “no issues of fact were raised.” Under these circumstances he can not now complain that he was not personally notified of the taking of testimony. He appears to have been fully represented in all the proceedings, and the rule which it is said entitled him to notice of the taking of testimony before the master, although in default, that he might appear and cross-examine. is not applicable. As said in Bauerle v. Long, 165 Ill. 340-347: “Of this right he was not deprived.” (See, also, Craig v. McKinney, 72 Ill. 305-314.)

It appears from the master’s report that some of the testimony taken was not returned by him. In Wright v. Troutman, 81 Ill. 374-376, it is said : “We understand the rule to be well settled that where the decree states that a hearing was had upon proofs, and the facts are found by the court in the decree, it will bind the defendants, "x" * unless the decree purports to give the evidence or refers to it in the record, and upon inspection it is insufficient to warrant the conclusions at which the court has arrived. As all the evidence is not incorporated in the record or set out in the decree, resort must be had to the facts found in the decree to exist.” In the case at bar the facts are found in the decree.

What plaintiff in error seeks by his petition is “ an opportunity to be heard upon the single question so.ught to be raised by him,” that being, as he says, the question of law whether the contract in writing set up in the original complaint was one which in law entitled the complainants to recover. No complaint is made that plaintiff in error Roulet did not obtain a hearing upon that question, when his petition was overruled in the Superior Court.

Other objections are raised, but we deem it unnecessary to review them. We are of' the opinion that the decree is erroneous as to the excess allowed over the sum of $1,000, and interest thereon. As to that sum we are of opinion that defendant in error is entitled to a lien. The decree is therefore reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.