Provost v. Shirk

• Citation: 223 Ill. 468,79 N.E. 178
• Parties: PROVOST et al. v. SHIRK et al.
• Decision Date: 06 December 1906
• Court: Supreme Court of Illinois

223 Ill. 468

79 N.E. 178

PROVOST et al.

v.SHIRK et al.

Supreme Court of Illinois.

Oct. 23, 1906.

Rehearing Denied Dec. 6, 1906.

Appeal from Appellate Court, First District.

Bill by Napoleon Provost against Elbert W. Shirk and the heirs of Franklin D. Clarke, in which the Hallowell Granite Company filed an answer and cross-bill. From a judgment of the Appellate Court affirming a judgment of the trial court dismissing the bill, plaintiff appeals. Affirmed.J. E. Henley, Arthur B. Wells, and John M. Blakeley, for appellants.

Ullmann & Hacker, for appellees.

This is a proceeding to enforce mechanics' liens under the act of 1887. Franklin D. Clarke on May 28, 1891, was the owner of the land upon which this lien is attempted to be enforced. At that date he entered into an agreement with appellee Shirk to convey to him said premises for the consideration of $100,000, $40,000 to be paid in cash and the balance of $60,000 to be paid over from time to time by Shirk as a building was being constructed on said premises, to aid Clarke in the construction of such building. In accordance with said agreement, Clarke, on July 18, 1891, by warranty deed, conveyed said premises to Shirk, and the latter at the same time gave a 99-year lease of the premises to Clarke in accordance with the terms of said contract. This lease is set forth, in substance, in a statement found in Clarke v. Shirk, 170 Ill. 143, 48 N. E. 182. One provision in the lease which is questioned here is as follows: ‘It is expressly understood and agreed, and notice is hereby given, that no transfer, assignment, mortgage, judgment, mechanic's lien or other lien shall in any degree or manner affect the lessor of said premises or his lien upon the interest of said party of the second part and his assigns in this lease for the payment of the rent, and other sums to be taken as rent, that may accrue up to the end of this lease.’ On September 7, 1891, appellant Provost entered into a contract under seal with Clarke, which provided that said appellant should furnish all material and labor to complete fully the mason work of the building to be erected on said premises according to plans, specifications, and drawings made by William G. Barfield, architect, to his satisfaction and under his direction, said work to be finished December 1, 1891, for which Clarke agreed to pay $21,000 on the certificate of the architect as the work progressed, to the amount of 70 per cent., and the remainder on the satisfactory completion and acceptance of the whole work according to the terms of a supplemental agreement made September 8, 1891. A portion of this supplemental agreement is as follows: ‘It is further agreed that on the completion of this said building the said Napoleon Provost will accept in payment of this contract four notes signed and indorsed by Franklin D. Clarke, for thirty (30) per cent. of the amount of this contract, said notes to be payable on or before one year, and bear interest at the rate of six (6) per cent. per annum, and to be secured by a deed of trust on said building to the Title Guaranty Company as trustee, which deed of trust shall be a first lien upon said building and leasehold interest to secure said notes,’ etc. Provost began to furnish material and do work on the building about September 12, 1891. It was found necessary to go deeper for foundations than was originally intended or provided in the specifications, and extra work was performed by Provost in excavating. He received from the architect a certificate for $10,000, which included $8,896 for extra work, and also a certificate for $7,372, which included $250 for extra work. Franklin D. Clarke died on October 20, 1891. On January 6, 1892, work was stopped by the widow and heirs of Clarke, and on March 25, 1892, the probate court allowed Provost, as a claim against Clarke's estate for said work, $16,822, upon which he has received $2,491.71. March 26, 1892, Provost filed with the clerk of the circuit court a statement of claim for work, which is set out fully in the opinion of the Appellate Court. The statement ran against the estate of Franklin D. Clarke, deceased, and his heirs, and after setting out, in a general way, the work done and the amount due, concluded as follows: ‘The following is a correct description of the real estate and property charged with a lien, to wit: All and singular the interest in that certain lease dated June 1, 1891, made between Elbert W. Shirk and the said Franklin D. Clarke in his lifetime, and the leasehold interest derived from said lease, being one for the period of ninety-nine years, commencing June 1, 1891,’ etc. Then follows a description of the property. The affidavit sets forth that the amount is due him from the estate of Franklin D. Clarke, and does not mention appellee Shirk. August 24, 1891, the Hallowell Granite Company, appellee herein, entered into a contract with Clarke to furnish and set all the granite work for the first two stories of the building, under the direction of the same architect and upon substantially the same terms, the work to be completed in 60 days, for the contract price of $69,000, 70 per cent. of which was to be paid in cash as the work progressed. A stipulation as to the 30 per cent. balance was as follows: ‘It is further agreed that on the completion of said building, which will be May the first, 1892, the said Hallowell Granite Company will accept in final payment of this contract a note signed by Franklin D. Clarke for thirty per cent. of the amount of this contract, said note to be payable on or before one year and bear interest at the rate of six per cent., payable semiannually, and be secured by deed of trust on said building to the Title Guaranty & Trust Company, trustee. And it is understood that at least seventy per cent. of the entire cost of the building shall have been paid in cash before the said first parties shall accept said note and waive their right of lien.’ The granite company commenced to quarry out and prepare the granite for said building and finish and ship the granite blocks covered by the contract. The granite so cut and prepared was of the value of $45,000. The value of the granite actually placed in the building was about $700. Granite to the value of about $3,800 was placed on the premises for the purpose of being used in the building by the order of the architect. The Hallowell Granite Company ceased work about January 15, 1892, because of the failure to make payments then due under the contract. December 2, 1892, this company filed with the clerk of the circuit court its statement of mechanic's lien, which is set out in full in the opinion of the Appellate Court. The statement ran against Elbert W. Shirk and the heirs and administratrix of the estate of Clarke, and after setting out, in a general way, the terms of the contract, the material furnished, and describing the property in question, concluded as follows: ‘And that the interest of said estate, as shown by the records of said Cook county, is under a ninety-nine year lease for a term of years from the first day of June, 1891, to the first day of May, 1990, executed by said Elbert W. Shirk as lessor and said Franklin D. Clarke as lessee, and conveying said property, and that the interest of said Elbert W. Shirk, as shown by the records of Cook county, is that of the owner of the fee of said premises; but the undersigned charges the fact to be that the record does not correctly represent the interest of said parties, but that the said Shirk is interested in the said building sufficiently to make his interest in said land subject to the undersigned's lien under the mechanic's lien law of the state of Illinois, and the undersigned claims a lien upon the said premises for said...