Harty Bros. & Harty Co. v. Polakow

• Decision Date: 04 February 1909
• Court: Illinois Supreme Court
• Parties: HARTY BROS. & HARTY CO. v. POLAKOW.

237 Ill. 559

86 N.E. 1085

HARTY BROS. & HARTY CO.

v.POLAKOW.

Supreme Court of Illinois.

Dec. 15, 1908.

Rehearing Denied Feb. 4, 1909.

Appeal from Appellate Court, First District, on Appeal from Municipal Court of Chicago; Henry C. Beitler, Judge.

Action by Harty Bros. & Harty Company against Samuel Polakow and another. A judgment for plaintiff against both defendants was reversed by the Appellate Court as to defendant Polakow on his separate appeal, and plaintiff appeals. Reversed and remanded, with directions.Bulkley, Gray & More, for appellant.

Max M. Grossman (H. J. Rosenberg, of counsel), for appellee.

CARTER, J.

Harty Bros. & Harty Co., a corporation, brought this suit in assumpsit in the municipal court of Chicago against Samuel Polakow and Bass & Bornstein. Polakow engaged Bass & Bornstein to do the carpenter work for him on a building in Chicago. Appellant contracted with Bass & Bornstein to furnish the millwork for such building. This action was brought to recover for the balance due under appellant's contract with Bass & Bornstein for the millwork or interior finish on said building, under section 28 of the lien act of 1903 (Laws 1903, p. 241; Hurd's Rev. St. 1908, c. 82, § 42). All the preliminary requirements of the lien law, including notice, were complied with by appellee before instituting this action. The court found that appellee had a lien on said building. The trial in the municipal court resulted in a judgment against Polakow and Bass & Bornstein for $1,683.54. Polakow prayed and was allowed a separate appeal to the Appellate Court for the First District. On the hearing in that court the cause was reversed, solely on the ground that the municipal court was without jurisdiction of the subject-matter of the suit. From the judgment of the Appellate Court, appellant has perfected its appeal to this court.

Appellant first contends that as the question of jurisdiction was not raised in the trial court it was waived. When a court does not have jurisdiction of the subject-matter conferred upon it by law, it cannot be invested with jurisdiction by consent. Such an objection cannot be waived. Demilly v. Grosrenaud, 201 Ill. 272, 66 N. E. 234;Town of Audubon v. Hand, 223 Ill. 367, 79 N. E. 71.

Does the municipal court of Chicago have jurisdiction of the subject-matter of the suit? If it has, it is agreed that it must be conferred by that part of section 2 of the act creating the court which grants it jurisdiction of ‘all actions on contracts, express or implied, when the amount claimed by the plaintiff, exclusive of costs, exceeds $1,000.’ Hurd's Rev. St. 1908, c. 37, § 265. No express contract relation existed between Polakow and appellant herein, but there was such an express contract between appellant and the copartnership of Bass & Bornstein and another express contract between Bass & Bornstein and appellee. If the municipal court had jurisdiction of this suit, it must be because there was an implied contract between appellant and Polakow.

Said section 28 of the lien law provides that if money is due a subcontractor he ‘may either file his petition and enforce his lien’ as provided under said law, ‘or he may sue the owner and contractor jointly for the amount due him in any court having jurisdiction of the amount claimed to be due, and a personal judgment may be rendered therein, as in other cases. In such actions at law, as in suits to enforce the lien, the owner shall be liable to the plaintiff for no more than the pro rata share, * * * and such action at law shall be maintained against the owner only in case plaintiff establishes his right to the lien. All suits and actions by subcontractors shall be against both contractor and owner jointly, and no decree or judgment shall be rendered therein until both are duly brought before the court by process or publication, and in all courts including actions before a justice of the peace and police magistrates, such process may be served and publication made as to all persons, except the owners as in suits in chancery. All such judgments, where the lien is established, shall be against both jointly, but shall be enforced against the owner only to the extent that he is liable under his contract as by this act provided. * * * But this shall not preclude a judgment against the contractor, personally, where the lien is defeated.’ By what action at law other than assumpsit could recovery be had under this section? That action lies ‘where a party claims damages for breach of simple contract-i. e., a promise not under seal. Such promises may be express or implied, and the law always implies a promise to do that which a party is legally liable to perform.’ Andrews' Stephen on Pleading, § 53. The term ‘implied contract’ has been used to denote not only contracts implied in fact-that is, obligations where the mutual intention to contract, although not expressed, is implied or presumed from the acts of the parties or from surrounding circumstances-but also to denote that class of obligations imposed or created by law without the assent of the party bound, and sometimes even notwithstanding his actual dissent, upon the ground that they are dictated by reason and justice. These latter obligations have sometimes been called ‘constructive contracts,’ or ‘contracts implied by law’-fictions of law adopted to enforce legal duties. Keener on Quasi Contracts, p. 5; Bishop on Contracts, § 205; Hertzog v. Hertzog, 29 Pa. 465; 9 Cyc. 242; 7 Am. & Eng. Ency. of Law (2d Ed.) 91; 15 Am. & Eng. Ency. of Law (2d Ed.) 1078; Lillard v. Wilson, 178 Mo. 145, 77 S. W. 74;Railway Co. v. Gaffney, 65 Ohio St. 104, 61 N. E. 152. This court has held, in the recent case of Chudnovski v. Eckels, 232 Ill. 312, 83 N. E. 846, that there is no distinction between contracts implied by law from the existence of a plain legal obligation, without regard to the intention of the parties, or even contrary thereto, and contracts implied, in fact, from acts or circumstances indicating the mutual intention; that all alike come within the natural and usual meaning of the words ‘implied contract.’ ‘Whatever the laws order anyone to pay, that becomes instantly a debt which he hath beforehand contracted to discharge.’ 3 Blackstone, 160; Bowen v. Hoxie, 137 Mass. 527; Bishop on Contracts, § 205; Pacific M. S. Co. v. Joliffe, 2 Wall. 450, 17 L. Ed. 805.

In our opinion the cases of Cooper v. Skinner, 124 Mass. 183, and Smith v. Silsbe, 53 App. Div. 462,65 N. Y. Supp. 1083, cited to show that this action is not on an...