Hoier v. Kaplan

• Decision Date: 28 October 1924
• Docket Number: No. 16001.,16001.
• Citation: 145 N.E. 243,313 Ill. 448
• Parties: HOIER v. KAPLAN et al.
• Court: Illinois Supreme Court

313 Ill. 448

145 N.E. 243

HOIER

v.KAPLAN et al.

No. 16001.

Supreme Court of Illinois.

Oct. 28, 1924.

Petition in circuit court for mechanic's lien by William V. Hoier against Harry Kaplan and others. Demurrer to part of petition was sustained, and as to other part overruled, and from order of dismissal of part of petition, to which demurrer was sustained, petitioner appealed to the Appellate Court for the First District, which denied a motion to dismiss appeal and affirmed decree of dismissal, and petitioner appeals on a certificate of importance.

Affirmed.

Appeal from Second Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Hugo M. Friend, Judge.

Stein, Mayer & David, of Chicago (Sigmund W. David and Louis W. Reinecker, Jr., both of Chicago, of counsel), for appellant.

Hyman J. Rosenberg, of Chicago (Abraham Miller and Irving Zimmerman, both of Chicago, of counsel), for appellees.

DE YOUNG, J.

The appellees, Harry Kaplan, Abe Sachs, and Salomon Bin, as owners, on August 10, 1921, entered into a contract with William V. Hoier, doing business as the William V. Hoier Company, the appellant, by which the latter agreed to install, according to drawings and specifications, a heating and ventilating system in the building then to be erected at 2039 and 2041 West North avenue, Chicago. Construction of the building began in the autumn of 1921, and the owners desired that operations continue uninterruptedly during the ensuing winter months. To proceed with the interior work, it became necessary to furnish heat during construction, and this was done by the appellant, upon written orders from the appellees. He installed radiators temporarily,by which heat was maintained 24 hours per day from January 19th to March 31st, and during shorter periods until May 11, 1922. This work was not specified in the contract, but the appellant made claim therefor as an extra in the following items: Labor furnished in maintaining heat, $4,551; public liability insurance, 65 cents and $12.74; and workmen's compensation insurance, $3.68 and $71.91. The claim, among others, was not paid, and the appellant filed his reamended petition in the circuit court of Cook county for a mechanic's lien. To this petition the appellees filed a general and special demurrer, which was sustained and the petition dismissed, so far as the items above enumerated were concerned. The demurrer as to the rest of the petition was overruled. From the order of dismissal, the petitioner appealed to the Appellate Court for the First District. In that court the appellees moved to dismiss the appeal, asserting that it had not been taken from a final order. The motion was denied, and upon a review the decree of the circuit court was affirmed. The Appellate Court granted a certificate of importance, and the case is here by appeal from that court.

[1][2][3] The record presents two questions: First, whether the order of dismissal by the circuit court was appealable; and, second, whether a mechanic's lien, under our statute, can be maintained for the items claimed. A judgment at law is a unit. A decree in equity may have the effect of several separate decrees. Walker v. Montgomery, 236 Ill. 244, 86 N. E. 240. An appeal may be taken from that part of a decree which deals with a particular subject, and such an appeal operates as a severance in the trial court of the parties and questions not concerned in the appeal. Mussey v. Shaw, 274 Ill. 351, 113 N. E. 605. The test is whether the decree or order appealed from determines the ultimate rights of the parties, with respect to distinct matters which have no bearing on other matters left for further consideration. Sebree v. Sebree, 293 Ill. 228, 127 N. E. 392;City of Park Ridge v. Murphy, 258 Ill. 365, 101 N. E. 524;People v. Vogt, 262 Ill. 170, 104 N. E. 226. The circuit court, by its order of dismissal, determined finally the rights of the parties, with reference to a definite and separate portion of the subject-matter of the controversy; hence the order was appealable, and the Appellate Court properly denied the motion to dismiss the appeal.

[4] Mechanics' liens are purely statutory. This court has uniformly held that the statute relative to mechanics' liens is in derogation of the common law, and that it must be strictly construed. Provost v. Shirk, 223 Ill. 468, 79 N. E. 178;North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 129 N. E. 273. The lien should be enforced when the party brings himself within the provisions of the statute, but it should not be extended to cases not provided for by the language of the act, even though they may fall within its reason. Provost v. Shirk, supra. Prior to the revision of the mechanic's lien law in 1895 (Laws 1895, p. 225), it was well settled that a lien for materials could be enforced only to the extent of their actual use in the construction of the building or improvement. Compound Lumber Co. v. Murphy, 169 Ill. 343, 48 N. E. 472. Material might be used or work performed in process of construction which would not come within the act. An example is afforded by the services of an architect, in drawing plans and specifications, who was unable to maintain a lien therefor until an express provision of the statute authorized the lien. Adler v. World's Pastime Exposition Co., 126 Ill. 373, 18 N. E. 809;Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055. In Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549, 98 N. E. 971, it was held that material used in making forms into which concrete was poured did not come within the provisions of the statute, since the material had not become a part of the completed structure. In 1913 (Laws 1913, p. 400) the act was amended by including within its scope ‘forms or formwork used in the process of construction where cement, concrete or like material is used.’ This amendment authorized a lien for such forms when used in the process of construction in the manner specified, even though they did not become a part of the completed building or improvement. Before a lien could be enforced for such forms, it became necessary to amend the statute by making specific provision for them, and until such provision was made their use in the process of construction afforded no basis for a lien. The rule of strict construction was consistently applied.

Section 7 of the Mechanic's Lien Act, as amended in 1913, permits the enforcement of a lien, within certain limitations, if ‘it is shown that such material was delivered either to said owner or his agent for such building or improvement, to be used in said building or improvement, or at the place where said building or improvement was being constructed, for the purpose of being used in construction or for the purpose of being employed in the process of construction as a means for assisting in the erection of the building or improvement in what is commonly termed forms or formwork where concrete, cement or like material is used, in whole or in part.’ The words ‘to be used in said building or improvement,’ and ‘for the purpose of being used in construction,’ have a more direct and immediate relation to the improvement than do the words ‘for the purpose of being employed in the process of construction as a means for assisting in the erection of the building,’ etc. ‘Used in said building or improvement’ and ‘used in construction’ denote use as a part of the construction, so that the material becomes a part of the completed structure. Rittenhouse & Embree Co. v. Brown & Co., supra. The words ‘used in...