Brady Brick & Supply Co. v. Lotito

• Decision Date: 26 October 1976
• Docket Number: No. 75--534,75--534
• Parties: , 1 Ill.Dec. 844 BRADY BRICK & SUPPLY CO., an Illinois Corporation, Plaintiffs-Appellees, v. Thomas LOTITO et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1126

356 N.E.2d 1126

43 Ill.App.3d 69, 1 Ill.Dec. 844

BRADY BRICK & SUPPLY CO., an Illinois Corporation, Plaintiffs-Appellees, v. Thomas LOTITO et al., Defendants-Appellants.

No. 75--534.

Appellate Court of Illinois, Second District, Second Division.

Oct. 26, 1976.

Schaffner & Ariano, Elgin, Marvin A. Miller, Chicago, for defendants-appellants.

Brittain, Ketcham, Strass & Terlizzi, Leo M. Flanagan, Jr., Gromer, Abbott, Wittenstrom & Strom, Elgin, for plaintiffs-appellees.

DIXON, Justice:

A suit was brought by Brady Brick & Supply Co., supplier of 31560 white bark Norman bricks and other material, to foreclose its mechanic's lien against certain real estate in West Dundee owned by the National Bank of Albany Park in Chicago, as Trustee. Anthony N. Chirikos and Dolores Chirikos were the beneficial owners of the trust and are also defendants.

A separate suit was brought by Thomas Lotito and Brian Christiansen, partners doing business as Lakeview Masonry to enforce their mechanic's lien for labor and materials furnished to and incorporated into the same real estate.

The two cases were consolidated and after trial the Circuit Court of Kane County entered judgment in each case in favor of the plaintiffs and against the defendant owners who take this appeal.

The bricks furnished by Brady were ordered by Anthony Chirikos in March or April of 1974. Previous to this time Chirikos had built two other buildings in his Tonde Shopping Center using the same type of brick but laid by a mason by name of Schmidgall. In the case of the prior two buildings Chirikos had ordered the bricks and the bill was sent by Brady to the mason who paid the bill. The testimony here was that because of a brick shortage Chirikos agreed that Brady should preorder the bricks and deliver them to the job site but that they would be invoiced to the successful bidder which would be either Schmidgall or Lakeview. Brady delivered bricks of a value of $5003.87 by May 17. Other building materials were also supplied by Brady.

Lakeview submitted a written proposal to Chirikos in which Lakeview agreed 'to furnish all materials and perform all labor necessary' to construct the third building in the Tonde Shopping Center. The proposal included a clause that 'payments to be made as job progresses.' Chirikos accepted the proposal and a binding contract was made May 8, 1974.

Brady sent a bill to Lakeview for the bricks on or about May 30, 1974 and again on June 30, 1974. It was conceded by Lotito that if Chirikos had paid Lakeview, Lakeview would have paid Brady's bill for the bricks.

Brady was not paid however and Brady proceeded to perfect its mechanic's lien rights against the property by following the steps required by the Mechanic's Lien Act (Ill.Rev.Stat.1973, chap. 82, §§ 1--39).

Brady's complaint to foreclose its mechanic's lien was filed Nov. 6, 1974. The owners' answer admits that the bricks and building materials and supplies furnished by Brady constitute a permanent and valuable improvement on the real estate in question. There was testimony that the bricks and materials furnished by Brady and as installed enhance the value of the owners' real estate by more than $5,000.00.

Unknown to Brady, Chirikos and Lakeview had a disagreement. Lakeview had begun the job in May and after about a month, on June 14, 1974, requested a first progress payment of $10,000 which payment was made about July 1, 1974. On July 7 Lakeview requested a second progress payment of $7,000 which was not paid. Chirikos contended that there was not sufficient work done to warrant the payment and that it would not be approved by his lending institution. Lakeview, by July 1 had paid out $7836 in wages for labor on the job and had paid two material companies, Acme Brick & Supply Co., $907.73 and Valley Block Company $918.54, for material (a total pay out of $9,662.27.) Acrimonious conversations between Lotito and Chirikos ensued. Chirikos refused to pay any amount. Lakeview walked off the job and refused to return unless the $7,000 was escrowed. About two weeks later Chirikos found another mason to complete the building and entered into a written contract on August 28, 1974 to complete the job for $9500.00. Lakeview presented testimony that it had laid 25,074 bricks from a total of 32--34000. Chirikos' witness did not challenge that statement but testified that he did 50% Of the work since the last work was time consuming.

At the conclusion of all the evidence the trial judge found for Brady in the amount of $5,705.16 against all defendants except Lakeview, and in favor of Lakeview and against all defendants in the amount of $1544.84.

I

The first contention on appeal is that the trial court erred in refusing to grant defendant's motion for judgment at the close of plaintiffs' cases. After denial of the motions defendants proceeded to adduce evidence in support of their defense.

Sec. 64(3) of the Civil Practice Act (Ill.Rev.Stat.1973 chap. 110, § 64(3) provides for motions for a finding, judgment or decree at the close of plaintiff's case in non-jury matters. The last sentence of the Act is as follows:

'If the ruling on the motion is adverse to the defendant he may proceed to adduce evidence in support of his defense, in Which event the motion is waived.' (Emphasis supplied)

Defendants introduced evidence after denial of their motion to dismiss. Introduction of such evidence is deemed to be a withdrawal or waiver of the motion to dismiss. (Havill v. Darch, 320 Ill.App. 667, 670, 52 N.E.2d 64.) The issue will not, therefore, be considered on appeal.

II

It is not contested that Brady Brick in establishing their right to a lien have complied strictly with all of the statutory requirements. Defendants argue that the evidence in support of Brady's claim establishes that Lakeview is obligated to pay the material charges, that all billings were to Lakeview, the written agreement between Lakeview and the defendants provides that Lakeview pay for the material, the admission of Lotito that he would pay the Brady bill by mid-July and that if the judgments entered are permitted to stand defendants will have paid $26,750 to construct a building which should have only cost $21,000. The argument totally ignores the fact that this is a mechanic's lien case. Chirikos admits that the bricks were furnished by Brady which were incorporated into and constitute an enhancement of the value of his building. He admits that the bricks had not been paid for and that the price was as agreed but says that Lakeview owes the bill. It was precisely for this type of situation that the Mechanics' Lien Act was enacted, to protect materialmen, who in good faith furnish materials for the construction of a building and to allow the materialman...