Martine v. Nelson

• Decision Date: 30 September 1869
• Citation: 1869 WL 5355,51 Ill. 422
• Parties: J. EDWIN MARTINEv.THOMAS NELSON.
• Court: Illinois Supreme Court

51 Ill. 422

1869 WL 5355 (Ill.)

J. EDWIN MARTINE

v.THOMAS NELSON.

Supreme Court of Illinois.

September Term, 1869.

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

The opinion states the case.

Mr. GEO. L. PADDOCK and Mr. F. B. PEABODY, for the appellant.

Mr. R. W. SMITH and Mr. ROBERT HERVEY, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was a proceeding under the lien law, in which the complainant sought to recover the value of certain work performed by him upon a house of the defendant. The defendant answered under oath, which had not been waived by the complainant, averring the work had been done under a special contract, and the issue formed was submitted to a jury, who found there was no special contract, and gave a verdict for the value of the complainant's work, so far as it was unpaid.

It is first insisted, by counsel for appellant, that housepainters are not within the protection of the lien law, because, it is said, they do not, in the language of the statute, “furnish labor or materials for erecting or repairing” a building.

This position is entitled to little consideration. The argument is, that the painting of a house is merely its coloring, and not a part of its erection, which, it is said, consists in lifting its walls into the air. But when we consider the object of the law, nothing can be plainer than that the legislature designed, by this act, to cover all labor or materials which the builder may choose to employ in finishing his house. If the builder protects the walls of his house from the action of the elements by covering them with a coat of paint or stucco, is it reasonable to say he has not used these materials in erecting his house? The urging of such arguments is labor lost.

It is also urged, that the verdict is not properly supported by the evidence; and this question we have not found it so easy to solve. As the oath to the answer was not waived, its effect, as evidence, so far as it was responsive to the bill, could be overcome, according to the general rule, only by two witnesses, or by one witness and corroborating circumstances. In this case, the complainant and defendant were both sworn, and the testimony of the defendant, so far as it explains the general allegation in the answer, that there was a special contract, in a manner consistent with the complainant's testimony that there was no special contract, must be taken as satisfactory corroboration. The defendant, in his testimony, as well as in his answer, insists there was a special contract that the work was to be done for $350. But when he goes into details, it is, we think, reasonably clear, as the jury found, that this price was fixed under an entire misapprehension created by the defendant, very probably without design on his part, as to the amount of work to be done. Both parties agree in this, that the complainant had not seen the building; that the...