Granquist v. Western Tube Co.

• Decision Date: 02 June 1909
• Citation: 240 Ill. 132,88 N.E. 468
• Parties: GRANQUIST v. WESTERN TUBE CO.
• Court: Illinois Supreme Court

240 Ill. 132

88 N.E. 468

GRANQUIST

v.WESTERN TUBE CO.

Supreme Court of Illinois.

April 23, 1909.

Rehearing Denied June 2, 1909.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Henry County; Emery C. Graves, Judge.

Action by Nels Granquist against the Western Tube Company. From a judgment of the Appellate Court affirming a decree for plaintiff, defendant appeals. Reversed and remanded.Knapp, Haynie & Campbell and Mark Breeden, Jr., for appellant.

Charles E. Sturtz and William C. Ewan, for appellee.

VICKERS, J.

The Western Tube Company, having obtained a certificate of importance from the Appellate Court for the Second District, has appealed from a judgment of that court affirming a decree of the circuit court of Henry county establishing a subcontractor's lien in favor of Nels Granquist for $760.08.

The petition of appellee, Granquist, alleged that Fred H. Matthews and Charles F. McMullen, partners doing business as the Matthews Construction Company, and the Western Tube Company, entered into a written agreement on July 28, 1905, for the erection and construction of a certain office building according to the plans and specifications annexed to such contract, and providing for the completion of said building by December 1, 1905, for the consideration of $16,400. The premises upon which the building was to be erected were not described in the contract. It is further averred in the petition that on June 29, 1905, the Matthews Construction Company entered into an agreement with appellee by which appellee was to furnish the material and labor for the brickwork on the said building for the sum of $7,750, and that in pursuance of his contract appellee furnished the material and labor and constructed the brickwork in accordance with his agreement and in the manner required by the plans and specifications. Appellee also furnished labor and material for extras amounting to $166.11. The building was not completed on December 1, 1905; but the petition alleges, and the evidence proves, that there was an agreement extending the time for the completion of the building to June 1, 1906. Appellee completed the brickwork May 18, 1906, and his work was accepted by appellant prior to June 1st of that year. During the progress of the work appellee was paid $6,721.37, leaving a balance due him when his contract was completed of $1,194.74, which sum was by subsequent payments reduced to $760.08. The amount due is not in dispute. The construction company did not answer the petition, and the decree as to it was entered by default. The Western Tube Company filed an answer to the petition, in which the material averments of the petition were denied. The cause was referred to a master in chancery. The master heard the proofs and reported that appellee was entitled to a lien for $760.08 on lots 1 and 2, in block 13, of the original town (now city) of Kewanee. Appellant filed a number of objections to the master's report, one of which was that no part of the building was on lot 1, but that it was on lots 2 and 3. This objection was sustained by the circuit court. The master thereupon amended his report by striking out lot 1 and recommending a decree for a lien on lot 2, and thereupon refiled his report. Appellant's objections were then overruled, and a decree entered establishing a lien on lot 2 in favor of appellee for $760.08 and $76 as fees for his attorney. Under the authority of Manowski v. Stephan, 233 Ill. 409, 84 N. E. 365, the Appellate Court reversed that portion of the decree allowing solicitor's fees and affirmed the decree in all other respects.

The first ground upon which appellant urges a reversal is that the circuit court erred in allowing a lien upon lot 2 alone, when the evidence shows that the building erected is partly upon lot 2 and partly upon lot 3. If the original contract had described lots 2 and 3 as the premises upon which the structure was to be erected, and it had been built on both of said lots, it might well be doubted whether a decree for a lien upon one of said lots alone would be sustained. The foundation of the lien is the contract with the owner of a lot or tract of land for the improvement thereof and the furnishing of the material and labor in accordance with such contract, in connection with the statute which gives the lien. The contract usually describes the location of the proposed improvement, and in such case, the contract being entire, it would seem that the lien given by the statute would be coextensive with the presmises described in the contract; but this is not the situation here. The premises, as already pointed out, were not described in the original contract. Apparently the subcontractor supposed the building was on lots 1 and 2, in block 13. Whether appellant knew to the contrary or not does not appear. On the hearing of the case, and after it was too late to file a lien on lot 3, the fact was discovered that no part of the building was on lot 1, but that it was partly upon lot 2, on an alley between lots 2 and 3, and partly upon lot 3. It is not controverted that appellee took the requisite statutory steps to perfect a lien upon lot 2, and it is equally clear that he did not take such steps in reference to lot 3. Under these facts the question is: Did the court err in holding that appellee was entitled to a lien upon lot 2?

In 27 Cyc. 160, it is said: ‘The validity of the claim [for mechanic's lien] is not affected by the fact that it does not cover as much land as it might properly have covered.’ In support of the above proposition three cases are cited: Culmer v. Clift, 14 Utah, 286, 47 Pac. 85;Pacific Rolling Mill Co. v. Bear Valley Irrigation Co., 120 Cal. 94, 52 Pac. 136,65 Am. St. Rep. 158; and McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39. In the California case above cited, which is the only one of the three cases which we have examined, there is a dictum which supports the statement above quoted from Cyc. In a note to the California case in 65 Am. St. Rep. it is pointed out that the proposition that ‘a lien may be enforced against a railway bridge or depot without including any other part of the system, although the claimant might have included other property,’ is a question upon which there is a conflict of authority. The writer of the note concludes his discussion by expressing himself as ‘well satisfied with the conclusions of the court upon the questions necessarily involved in its decision, and equally well satisfied with its dicta, for we think them sound upon principle though manifestly in conflict with the prior decisions of the court.’ We have been unable to find any case where this question was directly passed on by this court. The only case in this state that is cited by counsel on either side, that is directly in point, is Sorg v. Pfalzgraf, 113 Ill. App. 569. In that case the bill averred that the house was built on lots 9 and 10. On the trial it developed that the house was on lots 8 and 9, and not on lot 10. A decree was rendered establishing a lien on lot 9, and that decree was affirmed in an opinion by Mr. Justice Dibell of the Second district. It was held by that court that the failure to bring in lot 8 and subject it to a lien did not defeat the lien upon lot 9, which was properly subject to the lien. The facts in that case were substantially the same as in the case at bar, and the conclusion there reached, that the omission, through mistake, to include all of the land upon which the lien might have been perfected would not defeat the lien as against the lot properly described, seems to rest upon sound reason, especially in a case like the one at bar, where the rights of no person other than the owner of the premises and the contractor are involved. The case of Springer v. Kroeschell, 161 Ill. 358, 43 N. E. 1084, has some bearing upon the point under consideration. There a statement filed with the clerk, claiming a lien for labor and material used in ‘a brick building’ upon ‘lots 10 and 11,’ was held sufficient against a purchaser, although the proof showed that the building covered lots 10 and 11 and the south 7 2/12 feet of lot 7. This description was held by this court to be sufficient under the statute. Our conclusion is that the court did not err in holding that the lien should be established against lot 2, but we think that this rule should be limited to cases falling strictly within the facts in this record.

In the petition it was stated, upon information and belief, that James Porter and Harry W. Trask, who were doing business under the firm name of Porter & Trask in the city of Kewanee, had or claimed a lien upon the premises for materials furnished in the construction of said office building; but it was averred that said lien, if any, ‘was subject to the lien of appellee.’ The evidence introduced on the trial showed that Porter & Trask were subcontractors for the lumber and millwork for the consideration of $3,500, and that they furnished the lumber for the woodwork on said building, and that there was a balance due them, under their contract, at the time this suit was commenced. It does not appear that appellant demurred to the petition for want of proper parties or otherwise raised the question until the final hearing in the circuit court. Appellant insisted in the Appellate Court, and insists here, that the circuit court erred in rendering a decree without Porter & Trask being before the court as parties. Appellee, while not seriously contesting the claim that Porter & Trask were proper parties, yet claims that if they were necessary parties the question of nonjoinder should have been raised before the trial in the court below, or, if another suit was pending against appellant by Porter & Trask, appellant should have made a motion to consolidate the two cases. Appellee insists that appellant has waived its right to raise this question. The Appellate Court took appellee's view of this question.

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