Belanger v. Hersey

• Decision Date: 30 September 1878
• Citation: 90 Ill. 70,1878 WL 10109
• Parties: FRANCOIS BELANGER et al.v.JOHN W. HERSEY et al.
• Court: Illinois Supreme Court

90 Ill. 70

1878 WL 10109 (Ill.)

FRANCOIS BELANGER et al.

v.JOHN W. HERSEY et al.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.

Messrs. SNOWHOOK, JOHNSON & GRAY, for the appellants.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

This was a petition to enforce a mechanic's lien. A demurrer having been sustained to the original petition, by leave of the court an amended petition was filed, to which, also, a demurrer was interposed and sustained, and petitioners electing to abide by the petition, judgment was rendered against them for costs.

Sec. 1, chap. 82, Rev. Stat. 1874, provides: “That any person who shall, by contract, express or implied, or partly expressed and partly implied, with the owner of any lot or piece of land, furnish labor or materials, or services as an architect or superintendent in building, altering, repairing or ornamenting any house or other building or appurtenance thereto on such lot, or upon any street or alley and connected with such building or appurtenance, shall have a lien upon the whole of such tract of land or lot, and upon such house or building and appurtenance, for the amount due to him for such labor, material or services.”

The 3d section provides, when the contract is expressed, no lien shall be created under this act, if the time stipulated for the completion of the work or furnishing materials is beyond three years from the commencement thereof, or the time of payment beyond one year from the time stipulated for the completion thereof. If the work is done or materials are furnished under an implied contract, no lien shall be had by virtue of this act unless the work shall be done or materials be furnished within one year from the commencement of the work or delivery of the materials. It appears, from the allegations of the petition, that the work of petitioners was done under an express contract made between the parties before the work was commenced. In the original petition the contract is alleged to be in writing and is set out in hœc verba, but in the amended petition it is averred that the written contract was set aside before the work was begun, and a verbal contract made, which was in substance like the written contract. It is, however, immaterial whether reliance is placed on the written or on the verbal contract, as they are both express contracts, and must be controlled by the first clause of the third section of the act cited supra.

The first question, therefore, to be determined is whether petitioners have made out, by the petition, such a case as entitles them to a lien, under the statute. The amended petition does not allege that the labor, under the contract, was to be performed within three years, nor does it aver that the payment for the labor was to be made within one year from the time of the completion of the contract. These requirements can not be ignored--indeed no lien is given by the section of the statute which controls this case, unless its provisions in this regard are...