Reed v. Thomas C. Boyd

• Decision Date: 30 September 1876
• Citation: 1876 WL 10436,84 Ill. 66
• Parties: JOSEPH S. REED et al.v.THOMAS C. BOYD et al.
• Court: Illinois Supreme Court

84 Ill. 66

1876 WL 10436 (Ill.)

JOSEPH S. REED et al.

v.THOMAS C. BOYD et al.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. WILLIAM W. FARWELL, Judge, presiding.

This was a petition by Thomas C. Boyd and James J. Bufton, against Joseph S. Reed, Joseph E. Moss, Margaret E. Gulliver, Francis Peabody and Benjamin E. Gallup, to establish and enforce a mechanic's lien. The material facts of the case are stated in the opinion of the court.

Messrs. PADDOCK & IDE, for the plaintiffs in error.

Mr. S. ASHTON, for the defendants in error. Mr. JUSTICE WALKER delivered the opinion of the Court:

Defendants in error, about the 26th of July, 1872, as they allege in their petition, “entered into a verbal agreement with Joseph S. Reed and Joseph E. Moss, of Chicago, to furnish the materials and do the work for the plumbing and gas-fitting for the building known as the ‘Briggs House,’ then by the said Reed and Moss being erected on the corner of Wells and Randolph streets, Chicago, whereby the said Reed and Moss agreed with petitioners to pay petitioners the sum of ten per cent upon the cost of all such work and materials, from time to time, as the work should progress, and to be fully paid when the work was completed.”

The petition further alleges, that they furnished the materials and performed the work and labor as agreed upon by the parties; “that materials were all furnished and labor all finished and completed and accepted, upon said building, on or about the 3d day of May, 1873, and said Reed and Moss have failed to keep their agreement and pay said sum agreed therefor, though often requested.”

The petition further avers, that the amount due petitioners for the materials, work and labor, according to the agreement or contract, was the sum of $13,248.94, upon which has been paid to them the sum of $6550.02, leaving a balance due them, according to the agreement, of $6705.92, and interest thereon, according to a bill rendered and approved as correct by Moss, etc., which last named sum Reed and Moss had repeatedly promised to pay; and they “aver that the time for the furnishing the said materials and doing said work and labor and completing the said agreement or contract, was for a period not longer than three years, nor the time of payment therefor the period of one year from the completion thereof, as by the statute in such case made and provided.”

The petition alleges, “that said Reed and Moss were and are the owners of said building, and which said building was erected on and stands upon the south 122 feet,” etc., “and is known as the ‘Briggs House,’ as aforesaid, and that said Reed and Moss have an interest in the ground upon which said building stands, by way of leasehold, but to what extent and of what duration petitioners are not advised, and that said agreement or contract is good in said Reed and Moss.” It is further alleged, that petitioners are informed and believe, and state the same to be true, that Margaret Gulliver, Francis B. Peabody and Benjamin E. Gallup have or claim some interest in the premises and the building thereon, but of what character and to what extent they were not fully advised, and they are made defendants, and there is a prayer that they may be required to answer the petition and set forth the character and extent of their interest and claim to the premises and building, if any they had. There is, also, a prayer for the establishment of a mechanic's lien, under the statute, and a sale of the property.

A subpœna was issued and served on all of the defendants but Margaret E. Gulliver. At the October term, 1874, Reed and Moss interposed a demurrer to the petition, which was overruled. A subpœna having been subsequently served on Margaret E. Gulliver, she, and Peabody and Gallup were, on the 20th day of January, 1876, having failed to plead, defaulted, and the petition was taken as confessed against them, and Reed and Moss having abided by their demurrer, the court proceeded to find the amount due petitioners, and ordered the sale of the Reed and Moss interest in the house, and lot on which it is situated.

Moss and Peabody bring the record to this court on error, and ask a reversal of the decree. They assign numerous errors, a portion of which are not pressed on the argument. We shall, therefore, confine ourselves to such only as counsel have discussed.

It is urged that the petition was insufficient, because it is claimed it alleged no time was specified within which the materials were to be furnished, the labor to be performed, or the money to be paid. It is distinctly alleged, that the payments were to be made in installments of ten per cent, from time to time, as the work should progress, and to be fully paid when the work was completed; and it was alleged that the work was to be completed within three years. Now this fixes no precise day when it was to be completed, but it did specify a time within which the work was to be finished.

It is perfectly obvious to our minds that, under the statute of 1845, where parties make a contract, and it is specifically agreed that the materials shall be furnished and the labor performed within three years...