Biggs v. Clapp

• Decision Date: 30 September 1874
• Citation: 1874 WL 9136,74 Ill. 335
• Parties: SAMUEL BIGGS et al.v.WILLIAM A. CLAPP et al.
• Court: Illinois Supreme Court

74 Ill. 335

1874 WL 9136 (Ill.)

SAMUEL BIGGS et al.

v.WILLIAM A. CLAPP et al.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Messrs. FULLER & SMITH, for the appellants.

Mr. STEPHEN F. BROWN, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a petition filed by appellants, in the Superior Court of Cook county, as sub-contractors, against appellees to enforce a mechanic's lien under the act of 1869.

A trial was had before a jury, which resulted in a verdict against appellants. The court overruled a motion for a new trial, and rendered judgment upon the verdict.

To reverse this judgment appellants have prosecuted this appeal, relying mainly upon the ground that the court erred in giving appellees' third instruction, and refusing the first, second and fourth asked by them.

It appears from the evidence contained in the record, that on the 12th day of July, 1872, appellees entered into a contract with J. B. Smith & Son, by which the latter were to furnish the material and erect a certain building for appellees, for $13,300. The building was to be completed on or before the 1st day of September, 1872. By the contract appellees were to pay Smith & Son $1,000 when the walls of the basement were all up and the joists in; $1,500 when the walls of the principal story were up, the iron work set and the joists all in; $1,800 when the walls of the second and third stories were all up and joists all in; $2,000 when the walls were all up, joists all in, partitions set, cornices set and roof on; $2,000 when the floors were all laid and plastering completed; and the balance upon the completion and acceptance of the entire building.

The appellants contracted with J. B. Smith & Son to furnish certain cut stone for the building; appellants furnished the stone as they agreed to do, and there is a balance due them from J. B. Smith & Son, of $1,675. On the 12th of September, 1872, appellants served appellees with notice, under the statute, of a mechanic's lien as sub-contractors; at the time the notice was served, appellees had paid to J. B. Smith & Son, on the contract, $6,300; on the 3d day of October, 1872, by written permission of appellants, appellees paid J. B. Smith & Son, the further sum of $2,000; upon receiving this payment J. B. Smith & Son abandoned the work and appellees were compelled to complete it at an additional cost of $5,500, which made a sum exceeding $500 paid by appellants to complete the building over and above the original contract price.

At the request of appellees, the court gave to the jury an instruction as follows:

“3. The jury are further instructed that the mechanics' lien law is not intended to compel an owner to pay more than the original contract price for constructing a building. If, therefore, the jury find from the evidence that on the 3d day of October, A. D. 1872, William A. Clapp, the defendant, had rightfully paid the sum of $8,300, on an original contract for constructing the building 159 Fifth avenue, Chicago, and that the original contract price for constructing said building was $13,300; that the original contractors abandoned their contract on said building on the 3d day of October, 1872, and that, after said abandonment by the original contractors, the defendant was compelled to finish said building, and that in finishing the same in the manner provided for in the original contract, he has actually, and reasonably, and rightfully paid out more than $5,000 over and above the amount previously paid on the original contract, then in this action the plaintiffs are not entitled to recover.” It is insisted that the seventh section of the mechanics' lien act of 1869 was entirely ignored by the court by this instruction to the jury.

In other words, as we understand the position of appellants, they claim that under the seventh section, when the original contractor abandons the work and the rights of sub-contractors are involved, the owner is required to pay the full value of the work actually done, deducting only what has been paid, regardless of what it may cost to complete the building under the...