Carey-Lombard Lumber Co. v. Jones

• Decision Date: 19 October 1900
• Citation: 187 Ill. 203,58 N.E. 347
• Parties: CAREY-LOMBARD LUMBER CO. v. JONES et al.
• Court: Illinois Supreme Court

187 Ill. 203

58 N.E. 347

CAREY-LOMBARD LUMBER CO.

v.JONES et al.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from appellate court, First district.

Petition by the Carey-Lombard Lumber Company against J. Russell Jones and others to enforce a mechanic's lien. A decree for petitioner was reversed by the appellate court, and it appeals. Reversed.James H. Hooper, for appellant.

Green, Honore & Peters, for appellees.

Appellant was petitioner in the circuit court of Cook county to enforce a lien against city lots in Chicago, owned by appellee J. Russell Jones, for lumber furnished to construct certain improvements thereon. Appellee Jones and Elizabeth, his wife, together with T. C. Kane and David Meyer, were made defendants to the petition. Jones and wife alone answered, and upon replication a hearing was had, resulting in a decree in conformity with the prayer of the petition. On appeal, the branch appellate court for the First district reversed that decree, and remanded the cause, with directions to dismiss the proceeding. This appeal is from that judgment.

The petition sets forth that the petitioner, on April 16, 1890, entered into a contract with the defendants Kane and Meyer to furnish building materials for the erection of buildings on the lots, a copy of the agreement being attached, marked ‘Exhibit A.’ By an amendment to the petition, it is averred that the said Kane and Meyer at the time held a lease on the lots from Jones, a copy being attached, marked ‘Exhibit D.’ It is also averred that buildings were erected in accordance with the terms of said lease, which became the property of Jones; that on December 1, 1896, Jones declared said lease forfeited, and entered into possession, renting the same to other parties for an annual rental of $1,762.50, being $262.50 in excess of the rent reserved in the lease to Kane and Meyer; and that the latter thereupon became, and ever since remained, insolvent. Exhibit D, the lease alleged to have been entered into between Jones and Kane and Meyer, bears date February 5, 1896, and the material parts of it, for the determination of the questions here involved, are as follows: The first clause is a contract in the usual form, for the leasing of the property from the 1st day of May, 1896, for a term ending April 30, 1901. The next clause provides for the payment of rent at the rate of $1,500 per annum, payable by installments, as stated. The next clause is as follows: ‘It is further expressly understood and agreed that the said party of the second part shall, within four months from the date hereof, erect upon said premises buildings and other permanent improvements to cost not less than the sum of six thousand dollars ($6,000), the plans and specifications for which said improvements are to be submitted to the said party of the first part for his approval before the work thereon shall begin, and no buildings or other improvements of any kind shall be placed on said premises without first obtaining, in writing, such approval of the plans thereof by said party of the first part. It is further understood and agreed that all buildings, fences, walks, and improvements. of every kind and nature whatsoever, so erected or placed on said premises by the said party of the second part, shall, when placed thereon, become immediately a part of the realty and the property of the said party of the first part; and that upon the termination of this lease, either by limitation or otherwise, such buildings and improvements of every kind, which shall have been placed upon said premises by said parties of the second part, are to be at once delivered into the possession of said party of the first part, together with the ground herein demised. * * * It is further understood and agreed that should said party of the first part desire to use the premises herein demised at any time after the expiration of the first year of the term hereof, for the purpose of erecting buildings thereon or any other purpose, he shall have the right to terminate the said term upon first giving ninety days' written notice unto said parties of the second part of his intention so to do, and upon the payment to said parties of the second part, should such termination occur, pursuant to the right in this clause given, at any time during the second year of the term hereof, the sum of $4,800; or, should such termination occur at any time during the third year of the term hereof, the sum of $3,600; or, if at any time during the fourth year of the term hereof, the sum of $2,400; or, if at any time during the fifth year of the term hereof, the sum of $1,200. It is further understood and agreed that for the cost of any of the buildings or improvements which may be made by the parties of the second part during the term of this lease they shall permit no mechanics' liens to attach to said premises, and that should said parties of the second part fail to keep this agreement, and the said party of the first part be obliged, in order to protect said premises, to pay off and discharge any such mechanics' liens, he shall have the right forthwith to terminate the term hereof, upon thirty days' notice to said parties of the second part, in writing, of his intention so to do. It is further understood and agreed that the said second parties are to have the right, at any time subsequent to the execution hereof and prior to the beginning of the term of this lease, to enter upon said premises for the purpose of erecting or constructing such buildings and improvements as are herein contemplated, and that for such period as they may so hold possession of said premises prior to the beginning of the term of this lease they shall not be required by said party of the first part to pay any rent.’ It is next provided that the lessees shall keep all buildings and improvements placed upon the premises insured in the name of the lessor, for their full insurable value, and in default thereof the lessor may insure the same for himself, charging the same to the lessees. Other provisions relate to paying water tax; keeping the premises in a clean and wholesome condition, in accordance with the ordinance of the city and the directions of its health officers; that premises shall not be underlet, etc. The claim of the petitioner is for $1,111.47, with interest from November 25, 1896, amounting in all to $1,219.84, for lumber and materials furnished for the erection of the buildings. It is averred that on November 28, 1896, the petitioner filed with the clerk of the circuit court of Cook county a statement in writing setting forth the amount due, with a correct description of the property.

The answer of the defendants Jones and wife, as shown by the abstract, admits all the material allegations of the amended petition, except the averment that after the forfeiture of the lease by Jones the premises were leased to other parties for an annual rental of $1,762.50, or any sum in excess of the rent reserved in the forfeited lease, and denies that petitioner is entitled to interest upon its claim, and denies generally that the petitioner is entitled to the relief prayed.

WILKIN, J. (after stating the facts).

Section 1 of the mechanic's lien law of this state, in force June 26, 1895 (Hurd's Rev. St. 1897, p. 1034), provides ‘that any person who shall by any contract with the owner of a lot or tract of land, or with one whom such owner has authorized or knowingly permitted to improve the same, furnish or specially manufacture and prepare materials, fixtures, apparatus or machinery for the...