Morehouse v. Moulding

• Decision Date: 30 September 1874
• Citation: 74 Ill. 322,1874 WL 9133
• Parties: PHILO MOREHOUSEv.THOMAS MOULDING et al.
• Court: Illinois Supreme Court

74 Ill. 322

1874 WL 9133 (Ill.)

PHILO MOREHOUSE

v.THOMAS MOULDING et al.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. THEODORE D. MURPHY, Judge, presiding.

The nature and facts of this case necessary to an understanding of the points decided appear in the opinion of the court. The jury found there was due the petitioners, Kelley, Wood & Co., $330.18, and Moulding & Harlan, $860.50. The defendant, Morehouse, moved for a new trial, which was refused and an exception taken.

Messrs. DENT & BLACK, for the appellant.

Messrs. SCATES & WHITNEY, for the appellees Moulding and Harlan; Mr. G. P. WHITCOMB, for the appellees Kelly, Wood & Co.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This is a case arising under the mechanic's lien law, as contained in the act of 1869. The facts necessary to an understanding of the merits of the case may be shortly stated. In June, 1870, appellant contracted with W. H. H. Miller to erect for him a double dwelling-house on the premises described in the petition. The contract was in writing, and by its terms Miller was to furnish all the materials and labor necessary to fully complete the buildings according to the plans and specifications, at a total cost of $20,900, which was to be paid, as the work progressed, on the certificate of the architect, less fifteen per cent, which was to be reserved for the security of the owner until the completion of the work.

Appellees furnished materials which were used by the builder in the erection of the buildings under his original contract with appellant, and now seek to establish a lien on the premises for the amount respectively due them. There is no dispute, there was due Moulding and Harlan for brick furnished to Miller, and which were used in the construction of the building, $1,442, and to Kelly, Wood & Co., for lumber furnished and used for the same purpose, $555.85. Each of these firms commenced separate actions, but, by stipulation, the two suits were consolidated in the court below, and have since progressed as one cause.

Proof was made that within twenty days after payment should have been made, these parties gave appellant notice of their claims, and that they would insist upon the lien given by the statute.

The building, when completed, cost something over $30,000, but a large portion of the cost over the contract price, indeed nearly all of it, Miller insists was made up of extra work not indicated on the original plans.

This case has been elaborately argued, and should we discuss all the points made, it would require us to give a construction to almost every clause of the mechanic's lien law. But this will not be necessary. We are of opinion the decree can be maintained on principles about which there can be no controversy.

Great stress is laid on that clause of the first section of the mechanic's lien law, which provides: “In no case shall the owner or lessee be compelled to pay a greater sum for, or on "account of such...