Mantonya v. Reilly

• Decision Date: 19 February 1900
• Parties: MANTONYA et al. v. REILLY et al.
• Court: Illinois Supreme Court

184 Ill. 183

56 N.E. 425

MANTONYA et al.

v.REILLY et al.

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from appellate court, First district.

Proceeding by George Reilly against Lucius B. Mantonya for a mechanic's lien. The Powers Duplex Regulator Company became a defendant, and filed a cross petition. From a judgment of the court of appeals affirming a decree adverse to defendant Mantonya (83 Ill. App. 275), he appeals. Affirmed.Rich & Loehr, W. R. Hauze, and Warren B. Wilson, for appellant.

Haynes & Peale, for appellee Powers Duplex Regulator Co.

Albert N. Eastman, for appellee George Reilly.

PER CURIAM.

An application for a mechanic's lien was filed against the appellant by George Reilly, a subcontractor, and the Powers Duplex Regulator Company became a party defendant to the petition, and filed a cross petition. A hearing was had in the circuit court of Cook county, and a decree was entered according to the prayer of the petition as amended and the cross petition, and an appeal was prosecuted to the appellate court for the First district. The opinion of that court, by Adams, J., and the statement of facts, are as follows:

‘George Reilly, appellee, filed a petition for a mechanic's lien, as subcontractor, and the Powers Duplex Regulator Company became a party defendant to the petition, and filed, as an original contractor, a cross petitionfor a lien. There were other parties defendant to Reilly's petition, who filed cross petitions, claiming liens, but their claims were disallowed, so that the sole contest here is between the appellees named and appellant. The court decreed that Reilly and the Powers Company were entitled to liens,-the former for $2,272.59, and the latter for $237.09.

‘Appellant and his wife were the owners, each of one undivided half, of the premises. May 24, 1893, appellant and John W. Hersey entered into a contract, evidenced by writing of that date, by which Hersey agreed, for the consideration of $31,000, to furnish all the labor and material for the construction of a four-story and basement stone and brick apartment building at Nos. 374, 376, and 378 Dearborn avenue, Chicago, Illinois, excepting steam heating, mantels, gas fixtures, and electric work, in accordance with drawings and specifications furnished by John J. Kouhn, architect, in a good, workmanlike, and substantial manner, to the satisfaction of the owner, and under the directions of said architect and the owner, ‘to be testified by a writing under hand.’ The agreement provided, among other things, that Hersey was to be paid from time to time, as the work should progress to the approval of the owner or any one whom he might select, by certificates from the architect, not to exceed seventy-five per cent. of the amount of the material or labor employed. The said architect was made the arbiter of any disputes which might arise between the parties; his decision to be final and binding on the parties. Delay caused by either party was to be compensated to the other party at the rate of $25 per day. The contract contained this provision: ‘Plans and specifications are a part of this contract. Anything on plans and not on specifications, or vice versa, shall be considered a part of this contract.’ The contract also contained the following: ‘The work shall be done in accordance with working drawings furnished by architect whenever required.’

‘November 10, 1893, appellee Reilly filed his petition setting up the above-mentioned contract between Mantonya and Hersey, alleging that Hersey entered upon the work and continued the same until August 25, 1893, when he abandoned it; that petitioner is informed and believes that Hersey performed the greater part of the work, and that Mantonya, at time of abandonment, was indebted to him in the sum of $9,000; that Kouhn, the architect, had issued to Hersey a certificate to the extent of $9,000, which Mantonya refused to pay; that petitioner, June 3, 1893, contracted with Hersey to do the cut-stone work on the building (setting out the contract in full); that petitioner continued to work under his said contract till August 23, 1893, at which date he had substantially performed the same; that Hersey refused to pay him the money due him, and he refused to proceed; that then Mantonya, to induce petitioner to proceed with the work, told him that he (Mantonya) was indebted to Hersey in an amount exceeding the contract price in petitioner's contract with Hersey, and that, if petitioner would proceed with the work, he (Mantonya) would retain from the money which he owed Hersey enough to pay petitioner in accordance with his contract, and petitioner, relying on such assurance, continued and performed his contract. It is then averred that neither Hersey nor Mantonya, though frequently requested so to do, have paid petitioner; that there is due petitioner $2,000; and that he served appellant with notice of lien. The petition makes appellant and others parties, and concludes with the usual prayer, and for general relief. January 16, 1894, Reilly filed an amendment to his petition; alleging, as an excuse for not serving Mantonya with a copy of his contract with Hersey, that there was only one copy, which was in the possession of Kouhn, who, at Mantonya's instigation, refused petitioner access to it. May 6, 1896, a second amendment to Reilly's petition was filed, which amendment is as follows: ‘After the setting forth of the contract by and between Mantonya and the said Hersey, and immediately after the same, insert as follows: Your petitioner further shows unto your honors that the said contract, as aforesaid, made and entered into by and between the said Hersey and the said Mantonya, though executed in person and in the name of said Lucius B. Mantonya, was so executed for and on behalf of himself and his wife, Ella W. Mantonya, and in their joint interests, and as a contract for both, and with her knowledge, consent, and approval, for their joint interests and benefit; and your petitioner further shows unto your honors that he is informed and believes that, though the consideration of the said contract specified therein is $31,000, yet, the true and real consideration for the doing of said work was a large sum in excess of that, to wit, $10,000 more, to wit, the sum of $41,000, and that in the entering into and making of said contract the said Hersey and Mantonya conspired and confederated together, and pretended to contract for a much smaller sum than was really agreed to be paid for the work and labor so to be performed, for the purpose of preventing the creditors of the said Hersey from obtaining the benefits of said contract, and of defrauding and cheating them out of such sums of money as might be justly due and owing from the said Hersey to them for labor and material thereafter performed on the said building of the said Mantonya in pursuance of the said undertaking between him and the said Hersey,’ etc.

‘August 9, 1895, the issues having been made up by proper pleadings, the cause was referred to George Mills Rogers, master in chancery, to take and report proofs, with his conclusions thereon. The master's report was filed December 20, 1897. Fifty objections were filed by appellant to the report before the master, all of which he overruled. These objections, with the exception of ten of them, which were waived by appellant in the circuit court, stood as exceptions in said court, and were overruled by the court, and the master's report confirmed.

‘The contracts between Mantonya and Hersey and between Hersey and Reilly having been made in 1893, the law then in force, namely, the act of 1874, entitled ‘An act in relation to liens,’ as amended, must control as to the rights of the parties. Springer v. Bowerman, 75 Ill. App. 352; Hurd's Rev. St. 1893, p. 930; Andrews & Johnson Co. v. Atwood, 167 Ill. 249, 47 N. E. 387. Appellant's counsel insist that, in case of the abandonment of the work by the chief contractor, the remedy of a subcontractor is exclusively under section 45 of the act, and cannot be under section 29, as was held by the master and the court. Sections 29 and 45 of the act are as follows:

“Sec. 29. Every sub-contractor, mechanic, workman or other person, who shall hereafter, in pursuance of the purposes of the original contract between the owner of any lot or piece of ground, or his agent and the original contractor, perform any labor or furnish any materials in building, altering, repairing, beautifying or ornamenting any house or other building or appurtenance thereto, on such lot or on any street or alley, and connected with such building or appurtenance, shall have a lien for the value of such labor and materials upon such house or building and appurtenances, and upon the lot or land upon which the same stands, to the extent of the right, title and interest of such owner at the time of making the original contract for such house or the improvement; but the aggregate of all the liens hereby authorized shall not exceed the price stipulated in the original contract between such owner and the original contractor for such improvements. In no case shall the owner be compelled to pay a greater sum for or on account of such house, building or other improvements, than the price or sum stipulated in said original contract or agreement, unless payments be made to the original contractor, or to his order in violation of the rights and interests of the persons intended to be benefited by section 35 of this act: provided, if it shall appear to the court that the owner and contractor fraudulently, and for the purpose of defrauding sub-contractors, fixed an unreasonably low price in their original contract for the erection or repairing of such building, then the court shall ascertain how much of a difference exists between a fair price for the labor and material used in said building or other improvements, and the sum named in said original contract. Said difference shall be...