Major v. Collins
| Decision Date | 31 October 1882 |
| Citation | 11 Ill.App. 658,11 Bradw. 658 |
| Parties | JOHN T. MAJOR ET AL.v.JOHN COLLINS ET AL. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Cook county; the Hon. M. F. TULEY, Judge, presiding. Opinion filed November 26, 1882.
This was a petition for a mechanic's lien, brought by the defendant in error, John Collins against the plaintiff in error, John T. Major. The petition sets forth in substance, that on the 21st day of August, 1880, Major was the owner of lots 1, 2, 3, 20 and 21, of block 4 in Harwood and Goodspeed's subdivision, Sec. 9, T. 38 N., R. 14 east, 3d P. M., in Cook county, and that on or about that day he entered into a written contract with Collins, by which the latter was to furnish the materials and do the work for the building of five houses, to be erected one on each of said lots, each of said houses to have a separate roof; that Major was to pay Collins for the houses $2,950 in installments as the work progressed.
The petition alleges that Collins completed the houses on or about October 30, 1880, in accordance with the terms of the contract, and that the whole amount of the agreed price for the houses, less $100 paid on account, was due and unpaid at the time of filing the petition.
The petition further alleges that before and at the time of making the contract, said lots were incumbered for a larger sum than they were worth; that there was a trust deed to David H. Keyes, to secure notes for $4,000 payable to Helen A. Harwood, and a second trust deed to Harry Byrne to secure a note to Mary Buckley for $2,200. The petition alleges that the cash value of the lots did not exceed $250 each. Major, Keyes, Harwood, Buckley and Byrne were made parties defendant, and subsequently, the petition was amended by making unknown owners parties defendant.
Major answered under oath, admitting the making of the contract as alleged, but denying that anything was due to petitioner. Alleges that subsequent to the commencement of the suit Collins and himself had an accounting together in respect to the building of the houses, and there was found due to Collins $150, which he paid by giving him an order for accruing rents. Keyes and Harwood answered, denying knowledge of the contract between Major and Collins and asserting their rights under the trust deed to Keyes.
Subsequently leave was given to make defendant in error Hartwell, a party defendant. Hartwell answered and filed his cross-petition, claiming a lien on the premises. He alleges in substance that September 21, 1880, and when only $100 had been paid on the contract, Collins indorsed on the contract an order directing Major to pay to Hartwell all moneys then and thereafter to become due on the contract; that said order was given for a good and valuable consideration paid by Hartwell to Collins, of the giving of which order Major had notice. The cross-petition contained various other allegations not necessary to be stated.
The cross-petition was taken pro confesso as against Byrne and Buckley. Major answered, denying most of the allegations of the cross-petition, and alleging that, on the 20th day of November, 1880, and after the filing of the original petition, he executed another trust deed on the premises to one Howard as trustee, to secure an indebtedness of $2,500, and that, on November 23, 1880, he sold his equity in the property to one Addie West. Harwood and Keyes demurred to the cross-petition, which demurrer was sustained and the petition was dismissed as to them.
It further appears that on January 6, 1882, the defendants presented to the court the written stipulation of Collins to dismiss his original petition, and moved that the same be dismissed in accordance therewith, which motion was referred to the master to take proofs and report his conclusions thereon. His report was adverse to the motion, and the court refused to dismiss.
February 23, 1882, leave was given to Hartwell to amend his answer and cross-petition instanter, which he did by striking out so much of the same as claimed a lien upon the premises in question, and inserting a claim for an equitable lien on the moneys to be recovered by Collins under the contract; and an order was entered by the court that the answers and replications on file stand as such to the cross-petition as amended.
Proofs were taken, and upon final hearing a decree was entered for the petitioner. The decree finds that Collins made the contract as set forth in his petition, and that the only moneys ever paid by Major to Collins on said contract, prior to the assignment to Hartwell was $100, paid Sept. 21, 1880; that Collins, for a valuable consideration, assigned in writing to Hartwell all the money then due or to become due on said contract, of which assignment Major had full notice at the time.
That Collins performed his contract, and is entitled to a lien as prayed for in his petition, for the sum of $3,085. That Hartwell has an equitable lien on the whole of that sum; that in equity the proceeds or moneys arising from the enforcement of said lien by sale or otherwise, should stand charged with the claim of Hartwell, to the amount of $3,085, with interest from the entry of the decree.
That the value of each lot mentioned is $250, and the value of each house is $800. That Collins has a first lien (subject to the equitable charge of said Hartwell) on said houses, and a third lien on said lots, to the amount of $3,085 and costs. That Helen A. Harwood has a first lien on said lots, and a second lien on said houses; and that the unknown owners of notes secured by trust deed to Harry Byrne, have a second lien on said lots, and a third lien on said houses.
The decree provided that unless Major or some of the defendants should pay into court within ten days, $3,085, with interest and costs, the master should sell the premises described in the petition, and out of the proceeds pay first the costs, second, out of 16-21 of the net proceeds he pay Hartwell $3,085, with interest thereon from the date of the decree, and third, pay the residue into court, to be by said court distributed according to law.
Mr. DEWITT C. JONES for plaintiffs in error; that a complainant is bound by the case made by his bill, cited McKay v. Bissett, 5 Gilm. 499; Morgan v. Smith, 11 Ill. 361; Rowan v. Bowles, 21 Ill. 17; Belanger v. Harvey, 90 Ill. 70; Vennum v. Vennum, 61 Ill. 331; Fish v. Clelland, 33 Ill. 253. The court is presumed to reject improper evidence, and if there is not enough proper evidence to sustain the decree it will be reversed: Hillyer v. Lewis, 81 Ill. 264; Stone v. Wood, 85 Ill. 603.
A sworn answer must prevail unless overcome by evidence equivalent to two witnesses: Fish v. Stebbins, 65 Ill. 493.
The answer constitutes an admission of record which can not be disputed: Knowles v. Knowles, 86 Ill. 1; Weider v. Clark, 27 Ill. 251; Maher v. Bull, 39 Ill. 531; Board etc. v. Greenebaum, 39 Ill. 609.
It is error to render a decree broader than the prayer of the bill: Forquer v. Forquer, 21 Ill. 296; Hall v. Towne, 45 Ill. 493; Wing v. Goodman, 75 Ill. 159.
Defaulted parties are concluded by a decree pro confesso only to the extent of the averments in the bill: Cook v. Heald, 21 Ill. 429.
The contract must be to erect a building on some particular lot of land: Power v. McCord, 36 Ill. 214; Burkhart v. Reissig, 24 Ill. 529.
Where error has intervened the...
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