Quinn v. Allen

• Decision Date: 31 January 1877
• Citation: 85 Ill. 39,1877 WL 9475
• Parties: JAMES M. QUINNv.F. A. ALLEN et al.
• Court: Illinois Supreme Court

85 Ill. 39

1877 WL 9475 (Ill.)

JAMES M. QUINN

v.F. A. ALLEN et al.

Supreme Court of Illinois.

January Term, 1877.

APPEAL from the Circuit Court of Menard county; the Hon. LYMAN LACEY, Judge, presiding.

Mr. T. W. MCNEELY, for the appellant.

Mr. N. W. BRANSON, and Messrs. DEARBORN & CAMPBELL, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The assignment of error in this case questions the correctness of the decision of the court below in sustaining a demurrer to plaintiff's declaration. It contained two counts, and, in substance, averred, that Allen agreed, with the school directors, to furnish the material and labor, and to erect and complete for them a district school house; that Allen, in the performance of his part of the agreement, procured of appellant material and labor used in the erection of the building, for which he had not been paid; that before the directors had paid Allen, appellant, in pursuance of the statute, gave them notice that he would look to them for payment, and hold the house and ground liable for such material and labor; that after such notice the directors settled with and paid to Allen all that was due to him, wholly disregarding appellant's claim.

It is not claimed that appellant acquired a mechanic's or material-man's lien on the property, or, inasmuch as it was public school property, that he could have obtained such a lien. It is conceded such a lien can not attach to such property. But it is claimed, that, under the 29th, 30th and 37th sections of the chapter entitled “Liens,” and the notices he gave the directors, he can recover. The 29th section gives the sub-contractor a lien for labor or materials furnished for the construction of a building. The 30th prescribes the manner in which the sub-contractor shall give notice to the owner, by which to fix his lien. Had the statute made no further provision on the subject, there could have arisen no pretense of claim for holding the owner liable for a personal judgment, as these sections would only have rendered the property liable; but the 37th section has enlarged the liability of the owner and made the remedy more comprehensive. It provides, that if the money due the person giving the notice provided for in the 30th section, shall not be paid in ten days after the money shall become due and payable, and any money shall be due from the owner to the original coutractor, then such sub-contractor may file his petition and enforce...