Carey-Lombard Lumber Co. v. Fullenwider

• Decision Date: 19 June 1894
• Citation: 150 Ill. 629,37 N.E. 899
• Parties: CAREY-LOMBARD LUMBER CO. v. FULLENWIDER.
• Court: Illinois Supreme Court

150 Ill. 629

37 N.E. 899

CAREY-LOMBARD LUMBER CO.

v.FULLENWIDER.¹

Supreme Court of Illinois.

June 19, 1894.

Appeal from appellate court, first district.

Bill by the Carey-Lombard Lumber Company against James A. Fullenwider to enforce a mechanic's lien. Defendant obtained judgment, which was affirmed by the appellate court. Complainant appeals. Reversed.

Israel Cowen, for appellant.

James A. Fullenwider, pro se.

SHOPE, J.

This was a proceeding to enforce a mechanic's lien by appellants for material furnished to a contractor with appellee, who erected a house for appellee upon certain lots, of which he was owner. Section 29, c. 82, of the statute gives to every subcontractor, mechanic, workman, or other person who shall, in pursuance of the purposes of the original contract between the owner of any lot or piece of ground and the original contractor, perform any labor or furnish any material in building, altering, or repairing, etc., any house or other building, a lien for the value of such labor and materials upon the house and lot, etc. Section 30 of the act provides that the person performing such labor or furnishing material shall cause a notice in writing to be served on the owner or his agent, the form of which notice is prescribed by the statute; and it is provided therein that such notice shall not be necessary when the sworn statement of the contractor, provided for in section 35 of the act, shall serve to give the true owner notice of the amount due, and to whom due. See Butler v. Gain, 128 Ill. 23, 21 N. E. 350. Section 31 of the act is as follows: ‘If there is a contract in writing between the contractor and the subcontractor, a copy of the said subcontract, if the same can be obtained, shall be served with said notice, and attached thereto, which notice shall be served within 40 days from the completion of said subcontract, or within forth days after payment should have been made, to the person performing such labor or furnishing such material.’

We have repeatedly held that the law is to be strictly construed, and that a party seeking a lien thereunder must show compliance with its provisions. Butler v. Gain, and cases cited, page 27, 128 ill., and page 350, 21 N. E. The principal difficulty in this case arises in construing section 31. It is contended, and has been held by the lower courts, that, to preserve a subcontractor's or material man's right to a lien, the motion must be served upon the owner after the completion of the subcontract, or after payment should have been made to the person performing such labor or furnishing the material, and within 40 days after the completion of the subcontract, or after the maturity of payment, and that a notice served prior to completion of the subcontract, or prior to the time when payment should be made, by the person performing the labor or furnishing the material, is not a compliance with the statute, and effective to preserve the lien. In this case it appears that, under the subcontract, appellants, on February 2, 1892, commenced delivering to the contractor and builder lumber and material to be used in erecting the building. By the contract all materials delivered in one month should be paid for on the 1st day of the succeeding month. The lumber delivered in February amounted to $214.70, and the balance, amounting in gross to $1,241.45, was delivered in March, April, May, and June, the last delivery being on the 16th day of the latter month. It is not seriously questioned that this was an entire contract, payments to be made as stipulated. On February 8,-six days after the subcontract was entered into, and after the delivery of material had begun,-appellant served a notice upon appellee, as owner, which in form was in strict compliance with the statute. It is said that, to preserve the lien, the notice should have been given after the completion of the delivery, June 16th, and within 40 days thereof, or after and within 40 days of the 1st day of each month in which the lumber was delivered, for the payment then falling due under the contract. We are not inclined to adopt this construction. It is to be observed that the twenty-ninth section of the statute creates the lien in favor of the subcontractor or material man without limitation, other than that the liens therein authorized shall not exceed the price fairly stipulated to be paid by the owner to the original contractor for the building or improvement made, and shall not exceed the amount of indebtedness due from the owner to the original contractor. Section 33. The purpose of sections 30 and 31 was to require the notice to the owner, to the end that he should be protected against liens of which he had no notice. That the legislature had this purpose in view is clearly evinced by the proviso in section 30 that ‘such notice shall not be necessary where the sworn statement of the contractor provided for in section 35’ of the act ‘shall serve to give notice to the true owner of the amount due and to whom due.’ And in Butler v. Gain, supra, it was held that when the contractor furnished the owner with a sworn statement, as provided in section 35 of the act, all the purposes intended by the notice provided for in section 30 are accomplished, and that the subcontractor or material man would not be required to serve the notice provided for in the latter section. It might, again, be remarked that there is nothing in the prescribed notice to indicate that the work has been completed, or that the money is due. It is: ‘You are hereby notified that I have been employed by _____ to (here state whether to labor or furnish material, and substantially the nature of the undertaking, * * *), and that I shall hold the building * * * liable for the amount that is or may become due me on account thereof.’

It is apparent that, within the legislative contemplation, the notice would apply to contracts to labor or furnish material in the future, as well as to the sums of money to become due; and while the substance of the notice, or substantial form of it, only, is prescribed, it clearly shows that the attention of the legislature was directed to, and the notice intended to apply to, subcontracts not...