Garrett v. Stevenson
| Decision Date | 31 December 1846 |
| Parties | AUGUSTUS O. GARRETTv.ANDREW STEVENSON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
PETITION for a mechanic's lien, filed by the appellees against the appellant, in the Peoria circuit court, on the 27th day of October, A. D. 1841, where the cause was brought to an issue, but the venue was changed to Tazewell county in October, 1844, and, after being continued from term to term, was finally determined at the April term, 1846, of the circuit court in said county, the Hon. SAMUEL H. TREAT presiding. The issue was submitted by the court to a jury, a special verdict returned in favor of the petitioners for $2595.20, and the court rendered a judgment thereon, less $515.76, against the said Garrett.
A. LINCOLN and H. O. MERRIMAN for the appellant.
O. PETERS and L. B. KNOWLTON for the appellees.
This suit was originally commenced in the circuit court of Peoria county in October, 1841, by Stevenson & Wardwell against A. O. Garrett to enforce a mechanic's lien, and afterwards taken by change of venue into the Tazewell circuit court, and there disposed of by the rendition of a decree against the said defendant. From thence it comes by appeal into this court.
In dragging its slow length along, from its inception to its termination, it necessarily accumulated much matter by the way. Accordingly, its history is exhibited to us, swollen into a very voluminous record; but in tracing that history through all its various stages, it is found to present no question for our adjudication, growing out of any proceeding intermediate, between the commencement of the suit and the trial resulting in the decree now complained of. The appellant denies the right of his adversaries, at the time when they commenced their action, and under the circumstances of the case, to the remedy sought for by it, and insists, if overruled in that respect, that in the proceedings of the circuit court of Tazewell county, on the trial of the cause and in the rendition of the decree, there will be found such errors as to require the reversal of that decree.
This denial by the appellant of the appellees' right to the enforcement of a specific lien upon the premises described in the petition, involves no controversy as to matters of fact. But, assuming the law, entitled “an act for the benefit of mechanics,” approved February 22d, 1833, to have been in force when the contract was made, under which the lien is claimed, he contends that they can not now avail themselves of the benefit of such lien, because the suit for that purpose was not commenced within three months from the time that payment should have been made, by virtue of said contract, as required by the second section of the law referred to, in cases arising under its provisions. Gale's Stat. 461.
But this is an erroneous view of the subject. The law relied upon as governing and controlling the rights and obligations of the parties, under their contract, was not in existence on the 3d of March, 1840, when that contract was made. It had then been repealed by the law, entitled “an act to provide for securing to mechanics and others, liens for the value of labor and materials,” found on page 147 of the laws of 1839-40.
That law was passed by the general assembly at their session of 1838-9, and had it received the necessary constitutional sanction, would, by its own provision, have gone into effect on the first day of May, 1839. But it did not receive such sanction, and consequently its operation was for a time suspended. From the certificate of the secretary of state attached to the law, it appears that ten days did not intervene between the time when the bill was laid before the council of revision, and the adjournment of the general assembly; and that the said bill not having been returned with the objections of the council on the first day of the next ensuing session of the general assembly, it had then (on the 10th day of December, 1839, the second day of the last mentioned session of the general assembly), become a law. Such was the constitutional result. State Const. Art. III § 19.
Therefore, as by the terms of this law, thus shown to have been in force when the contract out of which this suit originated was made, no limitation in point of time is fixed upon the right of the creditor to enforce the lien created by it as against his debtor merely, it follows, that the right of the petitioners in this case to the enforcement of the lien claimed by them was in no wise affected by the delay on their part, in the institution of their proceedings for that purpose.
It may here be remarked, that between this view of the subject and the decision of this court in Turney v. Saunders, 4 Scam. 527, there is no conflict, as assumed by the counsel for the appellant in argument. The question settled in this case did not arise in that. It is there only determined, that where work was commenced under a contract entered into before the law of 1839 took effect, but not completed until afterwards, neither the lien, created thereby under the operation of the law of 1833, in force when the contract was made, nor the right to enforce it, was in any wise affected by the repeal of said last mentioned law. But as the right of action was inchoate and imperfect when the law of '33 was superceded by that of '39, they hold in recognition of a well established principle, that while the right is conferred by the former, and exists subject to all the limitations and restrictions imposed upon it thereby, the remedy must of necessity, be sought under the latter. The record in that case shows, that the work, commenced in October, 1839, was not completed until August, 1841, and that the suit was commenced in October, 1841, and within the time prescribed by the law of 1833. Had the fact in that respect been otherwise, the principle above referred to would have required a different result. The limitation upon the “right” of the plaintiff to sue, and the ““““liability” of the defendant to be sued, imposed by the law creating such ““““right and liability,” was, on the repeal of that law, continued as the inseparable concomitant of such “right and liability.” By its disregard, they would be materially affected, beneficially to the plaintiff, and to the defendant's prejudice. This, the repealing law provided should not be done. Laws 1839-40, 150 § 28.
Having thus shown that the appellees' right to the remedy sought by them in the institution of this suit, was not barred by the lapse of time, I now proceed to inquire, whether there was any error in the proceedings of the court, allowing him such remedy, either in the extent, or manner of its allowance.
The appellees filed their petition and amended petition, against the appellant and his wife, Mary G. Garrett, seeking to enforce a mechanic's lien upon certain lots in the town of Peoria, for materials furnished, and work done by them, as they alleged, in and about the erection of a house on said lots, under a contract with said appellant.
The appellant and his co-defendant answered said petition and and amended petition, denying all of the material allegationstherein contained, except as to the execution of the contract aforesaid, and the former (the appellant), in his answer claimed to have made large payments to the appellees under said contract; and to be entitled to set-off against their demands, a large sum of money for damages sustained by him, as he alleged, by reason of the unskillful and unworkmanlike manner in which the appellees had done their work, etc. and called upon the appellees to answer certain interrogatories in his said answer contained, touching his said claim of payment and set-off. The appellees answered said interrogatories (as will hereinafter be more fully shown), and replied generally to the answers of appellant and wife; and issue being formed on these pleadings, a jury was impaneled for their trial. They, having heard the proofs and allegations of the parties, found the following special verdict, to wit:
First. That the brick work was done in a workmanlike manner, and amounted to 682,098 brick.
Second. That the plastering was done in a workmanlike manner, and amounted to 6,112 yards.
Third. That the defendant, Garrett, is entitled to credits to the sum of $1776.00.
Fourth. That the complainants are entitled to the further sum of $100.00, for furring, and $135.00 for stone wall, and lathing, etc., $168.37.
Fifth. That the complainants fulfilled the contract on their part, and that the defendant, Garrett, failed to perform his part of the contract, in furnishing materials and making payments; and on the whole case, we find that Augustus O. Garrett is indebted to the complainants, for materials furnished and labor performed, under the contracts, and on the lots of ground mentioned in the pleadings, in the sum (including interest), of $2595.00.
The appellant, thereupon, entered successively his motions for a new trial, and in arrest of judgment, which were overruled, and he excepted.
The court then, deducting from the amount found by the jury the sum of $514.86, for the value and interest thereon of 11,598 brick and 1712 yards of plastering, as having been allowed by the jury to the appellees, beyond the amount claimed by them in their pleadings, rendered a decree against the appellant for the balance of $2,080.34, and decreed a lien in favor of appellees upon the legal and equitable estate and interest of the appellant in and to the lots described in the pleadings, and that the same be sold for the payment of the amount of said decree, etc. That decree the appellant now brings into this court for revision, and assigns the following errors, to wit: that the court erred,
1. In refusing to instruct the jury, on request of appellant's counsel, that appellant's answer was evidence of the payments therein alleged.
2. In refusing to give...
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