Hill Behan Lumber Co. v. Marchese

• Decision Date: 11 November 1971
• Docket Number: Gen. No. 71--16
• Citation: 1 Ill.App.3d 789,275 N.E.2d 451
• Parties: HILL BEHAN LUMBER COMPANY, a corporation, Plaintiff-Appellant, v. Dominic L. MARCHESE et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 451

275 N.E.2d 451

1 Ill.App.3d 789

HILL BEHAN LUMBER COMPANY, a corporation, Plaintiff-Appellant, v. Dominic L. MARCHESE et al., Defendants-Appellees.

Gen. No. 71--16.

Appellate Court of Illinois, Second District.

Nov. 11, 1971.

Benjamin Daidone, Chicago, for plaintiff-appellant.

Mirabella, Facktor, Mirabella & Kincaid, Wheaton, for defendants-appellees.

THOMAS J. MORAN, Presiding Justice.

Plaintiff, a materialman, brought suit to foreclose a mechanic's lien or, in the alternative, to impose an equitable lien upon the premises owned by the defendants, Dominic and Edith Marchese. The trial court held for the defendants and the plaintiff appeals.

In March of 1968, the defendants contracted with the defendant Nu-Look Construction Company for improvements to their home. Work was begun immediately. The testimony reflects that plaintiff was the sole supplier of lumber for that contract. From March 14 to April 17, several orders, for which plaintiff's invoices indicate the Marchese address as the intended job site, were placed by Nu-Look. Some of these orders were delivered to the defendants' premises by plaintiff, while others were picked up by Nu-Look. There is a final invoice dated May 10th which bears the defendants' address as the intended job site. That order was picked up by Nu-Look, who subsequently, went into bankruptcy.

Plaintiff contends that the trial court's findings as to the mechanic's lien action was against the manifest weight of the evidence and that the court erred in not awarding, in the alternative, an equitable lien.

The decision of the court that plaintiff is not entitled to relief under the Mechanics' Liens Act, (Ill.Rev.Stat.1967, Ch. 82, Secs. 1 thru 39), rests on its finding that the materials listed on the May 10th invoice were not delivered to the defendants' premises. The testimony on this issue is contradictory. The defendants testified that Nu-Look was ordered off their premises, and that they did not work after April 17th. Mr. Marchese also testified that various items contained in plaintiff's invoices, including all materials on that of May 10th, were either never installed or delivered, or not needed because of the completed stage of construction when ordered. The former officers of Nu-Look testifying as adverse witnesses stated that all materials listed on plaintiff's invoices, indicating the Marchese address as the intended recipient, including that of May 10th, were delivered there, and that no materials were thereafter removed from the premises.

The rule is that when the determination of a case depends upon contradictory facts in the record, a reviewing court will not disturb the findings of the trial court unless they are manifestly against the weight of the evidence. Brown v. Commercial Natl. Bk., 42 Ill.2d 365, 371, 247 N.E.2d 894 (1969), Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 356, 226 N.E.2d 624 (1967), Brown v. Zimmerman, 18 Ill.2d 94, 102, 163 N.E.2d 518 (1959). A finding is against the 'manifest weight' when 'an opposite conclusion is 'clearly apparent', * * * or the finding * * * appears to be 'unreasonable, arbitrary, and not based on the evidence * * *" Roth v. Lissner Iron & Metal Co., 88 Ill.App.2d 352, 355--356, 232 N.E.2d 534, 536 (1967).

The testimony in this case was susceptible of more than one conclusion. From our review of the record we cannot say the trial judge's finding that no material was delivered on May 10th was unreasonable, arbitrary and not based on the evidence or that an opposite conclusion was clearly apparent. Consequently, his findings were not against the manifest weight of the evidence.

There is no question but that the defendants were potentially liable to plaintiff under the Liens statute, sections 21 and 24, because of their failure to obtain the...