Kendall v. Fader

• Decision Date: 25 October 1902
• Citation: 199 Ill. 294,65 N.E. 318
• Parties: KENDALL et al. v. FADER.
• Court: Illinois Supreme Court

199 Ill. 294

65 N.E. 318

KENDALL et al.

v.FADER. ^*

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, First district.

Suit by the Tacoma Safety Deposit Company against Neil A. Fader and others from a decree of the branch appellate court affirming a decree in favor of Fader (99 Ill. App. 104). Daniel R. Kendall and others appeal. Affirmed.Clarence A. Burley and William H. McSurely, for appellants.

Francis T. Murphy and Thaddeus S. Allee, for appellee.

The original bill in this case was filed on November 21, 1896, by the Tacoma Safety Deposit Company against Charles F. Stewart, Sarah Anna Stewart, Harry W. Christian, trustee, and George P. Law, successor in trust, James H. Christian and Mary J. Christian, his wife, Neil A. Fader, and others, to foreclose, upon certain property lying west of Vincennes avenue, in Cook county, a trust deed dated March 14, 1895, and recorded in the recorder's office of Cook county on May 3, 1895, executed by Charles F. Stewart and wife, to secure a note of same date for $750, signed by Charles F. Stewart, due one year after date, to the order of himself, and by him indorsed to the Tacoma Safety Deposit Company, which note was transferred by Harry W. Christian to said company to secure an indebtedness to said company. The bill so filed alleged that said trust deed was made subject to two prior trust deeds,-one to William Loeb, dated February 1, 1895, and recorded February 4, 1895, to secure $4,000; and the other, of same date, to said Loeb, to secure $500. Charles F. Stewart and wife filed an answer to the original bill of the Tacoma Safety Deposit Company. Neil A. Fader also filed an answer calling for strict proof. Fader also, on January 18, 1897, filed a cross-bill, setting up that on October 25, 1894, he contracted with Charles F. Stewart to build a house on said premises for $3,395; that said house was built and completed about November 20, 1895; that there was unpaid to Fader under said contract the sum of $1,188.42, being the amount at that time found to be due said Fader upon an accounting then had between him and Stewart; that on January 30, 1896, Fader filed in the circuit court of Cook county a claim for lien, verified, consisting of statement of contract, etc.; that demand had been made upon Stewart for payment of said sum of $1,188.42, which had not been paid. The Tacoma Safety Deposit Company answered the cross-bill of Fader, neither admitting nor denying the same, but calling for strict proof. The appellants Daniel R. Kendall and Virginia B. Rogers, as trustees of the estate of John L. Rogers, deceased, and owners of the note for $4,000, above referred to, entered their appearance, and filed an answer to Fader's cross-bill, alleging that on February 1, 1895, Charles F. Stewart was indebted to them in the sum of $4,000 for money loaned to him, and made his note of that date for $4,000, payable five years after date, with interest at 6 per cent. evidenced by interest coupon notes, each for the sum of $120, payable one every six months after date; that all of said notes were indorsed by Stewart and delivered to Kendall and Rogers, as trustees as aforesaid, the owners thereof; and that to secure the payment thereof Stewart and wife executed the deed of trust above referred to, conveying said premises to William Loeb, as trustee; and alleging that said trust deed is a first and valid lien upon the premises, and prior to the alleged lien of Fader. Replications were filed to the answers, and the cause was referred to a master in chancery, who made his report. Objections and exceptions were filed to the master's report by appellants and by Charles F. Stewart. On June 28, 1900, the cause came on to be heard upon exceptions to the master's report. It had been claimed by Stewart, the owner of the property, in his answer, that the building was not constructed in accordance with the plans and specifications, and that he was damaged thereby to the amount of about $1,000. Fader claimed to have performed his contract, and a large amount of testimony was introduced upon this subject. The master allowed for damages and loss for failure to follow the specifications the sum of $145.45, but in other respects found for the lien claimants. In its decree the circuit court confirmed the master's report, except that it increased the amount allowed for damages and loss to $245.45. The decree so entered found that the material allegations in Fader's cross-bill were true, and that on October 25, 1894, Charles F. Stewart was the owner of the premises in controversy; that Fader erected a building thereon at 4313 Vernon avenue; that it was completed November 20, 1895; that Stewart then took possession; that on January 30, 1896, Fader filed with the clerk of the circuit court a statement of claim for mechanic's lien; that said statement contained a statement of the balance due Fader from Stewart, after allowing all credits of $1,188.42; that said statement was filed in due season, and complied with the statute; that the amount due Fader, including $60.90 for extras furnished with the consent of Stewart, amounted to $3,455.90; that Stewart was entitled to a credit of $2,375.70, leaving a balance due Fader of $1,080.20; that there was due on the same interest at 5 per cent.,-making a total of principal and interest of $1,315.45; that Fader was entitled to recover a reasonable sum on account of solicitor's fees; that 10 per cent. was such reasonable sum, amounting to $131.54,-making a total due Fader of $1,446.99; that Fader was entitled to a first lien on said premises for said sum of $1,446.99; that appellants were the owners of said note for $4,000 and the said interest notes thereon and the trust deed securing the same, and that there was due them the sum of $4,918.28; that appellants had a lien on said premises subject only to the lien of Fader; that the Tacoma Safety Deposit Company was the holder of said note for $750 and the trust deed securing the same, and that there was due to it thereupon $922.36, and that the lien of the trust deed of said company was subject to those of Fader and of appellants. After making the findings above named, the decree decreed that Fader had a first lien for $1,446.90; that appellants had a second lien for $4,918.28; that the Tacoma Safety Deposit Company had a third lien for $922.36; and the decree ordered that Stewart pay the respective parties the sums due them within three days, and, upon default, that the master sell the premises. From the decree so entered by the circuit court the present appellants, as trustees as aforesaid, prayed an appeal to the appellate court, which was allowed. The branch appellate court, to which the appeal was taken, affirmed the decree of the circuit court, except that the solicitor's fee of $131.54, allowed by that decree, was disallowed.

MAGRUDER, C. J. (after stating the facts).

The decree of the circuit court held that Fader, appellee, claiming a mechanic's lien upon the premises in question, was entitled to a first lien thereon for $1,080.20, together with interest and attorney's fees; and that appellants, as trustees under the will of John L. Rogers, deceased, were entitled to a second lien by virtue of the trust deed, executed to William Loeb, as trustee, to secure a note for $4,000, owned by them. The present appeal is prosecuted by the appellants, as owners of the incumbrance, decreed to be subject to the appellee's mechanic's lien, and the controversy is, therefore, between the mechanic's lien creditor and such incumbrancers, and not between the mechanic's lien creditor and Stewart, the owner of the property. Appellants claim that the decree of the circuit court was erroneous in holding that appellee was entitled to a lien prior to the lien of their trust deed. The decree is alleged by appellants to be erroneous upon two grounds.

1. It is contended by appellants that the statement of claim filed with the clerk of the circuit court by appellee for a mechanic's lien is indefinite and insufficient. The statement is thus charged to be defective upon the alleged ground that it does not sufficiently give or state the time or times of furnishing the labor or material.The statement so filed discloses that the contract between appellee and Charles F. Stewart, the owner of the property, for the erection of the building upon the premises in question, was in writing, and was dated the 25th day of October, 1894; that the original contract provided for the construction of a block of three stone front residences on the east side of Vernon avenue, but was amended on February 18, 1895, by providing that only one of the three houses was to be erected thereunder, as the other two houses had been withdrawn by previous agreement. Work upon the houses under the contract is shown by the proof to have been begun shortly after October 25, 1894. It follows that the mechanic's lien law of 1895, which was passed on June 26, 1895, and by its terms went into effect at once, has no application in the present case. The form of the statement here is controlled by the mechanic's lien law of 1874, as amended on May 31, 1887. The law in force at the time a contract is executed enters into and forms a part of the contract. Inasmuch as the mechanic's lien in this case arose out of a contract, entered into prior to the passage of the mechanic's lien law of 1895; the latter law does not govern the present case. It has been so held by this court in a number of decisions. Andrews & Johnson Co. v. Atwood, 167 Ill. 249, 47 N. E. 387:Culver v. Atwood, 170 Ill. 432, 48 N. E. 979;Weber v. Bushnell, 171 Ill. 587, 49 N. E. 728;Stone v. Tyler, 173 Ill. 147, 50 N. E. 688;Young v. Jones, 180 Ill. 216, 54 N. E. 235;Mantonya v. Reilly, 184 Ill. 183, 56 N. E. 425. In Culver v. Atwood, supra, it was held that the mechanic's lien act of 1895 gives new remedies to parties furnishing labor or material to subcontractors, and imposes new...