Bingaman v. Dahm

• Decision Date: 28 October 1940
• Docket Number: Ag. No. 10.
• Citation: 30 N.E.2d 509,307 Ill.App. 432
• Parties: BINGAMAN ET AL. v. DAHM ET AL.
• Court: United States Appellate Court of Illinois

307 Ill.App. 432

30 N.E.2d 509

BINGAMAN ET AL.

v.DAHM ET AL.

Ag. No. 10.

Appellate Court of Illinois, Fourth District.

Oct. 28, 1940.

Appeal from Circuit Court, St. Clair County; Alfred D. Riess, Judge.

Suit by William (Bill) Bingaman and Martin W. Busekrus, doing business as the Da-Nite Garage & Filling Station, against Alfred E. Dahm, etc., and others for foreclosure of a mechanic's lien. From a decree for plaintiffs, the defendants appeal.

Affirmed. Russell H. Classen, of Belleville, for appellants.

Louis J. Grossman, of Belleville, for appellees.

CULBERTSON, Justice.

This is an appeal from a decree of foreclosure of a mechanic's lien, decreeing that defendants, Alfred E. Dahm, etc., James H. Ripley, and Barbara Ripley, pay to plaintiff William (Bill) Bingaman, the sum of $559.93, and to plaintiff Martin W. Busekrus, doing business as Da-Nite Garage & Filling Station, the sum of $145.15, together with interest at the rate of 5 per cent. from the date of the decree, and providing in the usual form for the sale of certain premises of the said James H. Ripley and Barbara Ripley, in the event of the failure to make such payments.

The evidence disclosed that Alfred E. Dahm, one of the defendants, entered into a lease agreement, which was ultimately reduced to writing with the defendants, James H. Ripley and Barbara Ripley, for the purpose of operating a coal mine on the premises decreed to be sold. A mine had previously been operated on the premises, but the tipple and other equipment had been destroyed by fire. Plaintiffs were employed by the said Alfred E. Dahm in the erection and construction of a new tipple and of certain machinery necessary to operate the mine. It was alleged by the plaintiffs that this was done with the knowledge and consent of defendants, James H. Ripley and Barbara Ripley. There is evidence that James H. Ripley knowingly permitted the labor to be performed, that he was present repeatedly while the work was being done, and one witness testified that Ripley even pleaded with plaintiff Bingaman to continue with his work and that he would “take care” that such plaintiff be paid for doing the work. The Ripleys were shown to have resided on the premises about two blocks from the property upon which the work was being done during such time. It was also shown that the Ripleys had later forfeited the lease to Dahm and obtained title to the property upon which the work was done.

Plaintiff Bingaman testified that, under verbal contract, he had performed certain work, upon which there was paid him a certain sum in cash and coal, leaving an unpaid balance which he made the basis of his claim for lien. Plaintiff Busekrus also alleged and testified that he performed certain work, for which he was not paid, and both plaintiffs presented evidence to the effect that the improvements and work done by plaintiffs were adapted to the use of the mine property, and that the amount was reasonable and constituted a valuable and lasting improvement on the premises, and enhances the value thereof at least to the extent of the labor performed.

Claims for lien were filed by both plaintiffs, and thereafter the action to foreclose such liens was instituted. The matter was heard before a master-in-chancery, who reported his conclusions to the court, and the objections of defendants to such report were overruled, and were again overruled by the Circuit Court of St. Clair County when such objections were noted as exceptions. A decree was entered in accordance with the report, as hereinabove set forth.

The appellant-defendants, in the brief filed in this court, set forth numerous assignments of error, which are apparently a partially edited copy of the objections filed to the master's report. No useful purposecould be served by reviewing all of the assignments so set forth. The major points relied upon by the defendants for reversal in this cause, are: (1) That necessary parties in interest who should have been made parties defendant have been omitted, and that, therefore, the plaintiffs' action should be dismissed; (2) That some of the labor performed by one of the plaintiffs was performed in the regular course of operating the mine, and is not lienable; (3) That the claims combine lienable and non-lienable items, and that they cannot, therefore, be enforced for any part of the work done; (4) That the labor was furnished on movable or temporary items; (5) That the landlord's estate is never subjected to mechanic's lien where the lease provides (as here) for removal of the improvements by the tenant at the expiration of the term; (6) That there is a variance between the bill of complaint, exhibits attached thereto, the claim for lien, and the evidence introduced at the trial; and (7) That there is no evidence to show that Barbara Ripley knowingly permitted the work to be done.

The evidence in the record shows that there was some dispute as to the various items referred to in the points relating to matters of evidence outlined heretofore. The evidence, however, tends to sustain the decree in these respects, and we cannot say that the finding and conclusion of the court below, as to any matters objected to, is contrary to the weight of the evidence.

Upon consideration of all the evidence in the record, the lease from the Ripleys, under which Dahm was operating, the nature of the work done, the special adaptability of the results of the labor for the use of the mine and of the particular premises involved, and the effect of such labor in placing the property in condition for the use for which is was intended, this court must conclude that such labor is properly lienable under the Mechanics' Lien Act, Ill.Rev.Stat.1939, c. 82, § 1 et...