Rittenhouse & Embree Co. v. F.E. Brown & Co.
| Decision Date | 21 June 1912 |
| Citation | 254 Ill. 549,98 N.E. 971 |
| Parties | RITTENHOUSE & EMBREE CO. v. F. E. BROWN & CO. et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County; Richard E. Burke, Judge.
Suit by the Rittenhouse & Embree Company against F. E. Brown & Co. and others. From a decree of dismissal for want of equity, complainant appeals. Affirmed.
Adams, Bobb & Adams (James B. Wescott, of counsel), for appellant.
Tinsman, Rankin & Neltnor and William A. Doyle (Einar C. Howard, of counsel), for appellees.
The appellant filed a bill in the superior court of Cook county for a mechanic's lien for lumber furnished by appellant, as a subcontractor, to F. E. Brown & Co., the original contractor with the appellee Adelaide F. Jones, for the reinforced concrete construction required in the erection of a three-story brick and reinforced concrete laundry building. The lumber was of the value of $547.11, of which $270 was paid, and a lien was claimed for the remainder, $277.11. The lumber did not enter into the permanent construction of the building, and was not furnished for that purpose, but for false work, the molds and forms into which the concrete was poured. It was afterwards all taken away. On a hearing the bill was dismissed for want of equity.
[1] Section 1 of the Mechanic's Lien Law (Hurd's Rev. St. 1911, c. 82) declares that any person who shall by contract with the owner ‘furnish material, fixtures, apparatus or machinery for the purpose of, or in the building, altering, repairing or ornamenting any house or other building,’ etc., shall be known as a contractor and shall have a lien ‘for the amount due to him for such material, fixtures, apparatus, machinery, services or labor,’ etc. Section 7 provides that no lien for material shall be defeated ‘because of lack of proof that the material after the delivery thereof, actually entered into the construction of such building or improvement, although it be shown that such material was not actually used in the construction of such building or improvement: Provided, it is shown that such material was delivered either to such owner or his agent for such building or improvement to be used in such building or improvement, or at the place where said building or improvement was being constructed, for the purpose of being used in construction.’ Prior to the revision of this law in 1895 (Laws 1895, p. 225) is was well settled that a lien could be enforced only to the extent of materials actually used in the construction of the building. Compound Lumber Co. v. Murphy, 169 Ill. 343, 48 N. E. 472. Section 7 of that revision provided that the lien should not be defeated because of lack of proof that the material, after delivery, actually entered into the construction of the building; but it was still required, as it is now under the revision of 1903, that the material should have been delivered for the purpose of being used in the construction. The words ‘used in such building or improvement’ and ‘used in construction’ here mean, in our judgment, more than employed in the process of construction as a means for assisting in the erection of the building. They mean used as a part of the construction, so that the material becomes a part of the completed structure. Under section 21 the subcontractor has a lien as broad as that of the original contractor. If the words, ‘used in such building or improvement’ and ‘used in construction’ have so broad a meaning as to apply to materials not used as part of the construction, but employed as a means to assist in the process of construction, then every subcontractor must have a lien, by virtue of section 1, for all the material, fixtures, apparatus, or machinery furnished by him for the purpose of building the house. Every person who sells to a contractor, to be employed in the building of a house, any donkey engine, table, rope, carpenter's or mason's tools, or other implements or devices for carrying on the work, furnishes machinery or apparatus for the purpose of building the house. All such machinery, appliances, and tools are in a sense used in the construction of the building; but we believe no one would contend that the vendor of such articles, to be employed for the purpose mentioned,...
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...it will not consider or determine constitutional questions which are not essential to a decision of the case. Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549, 98 N.E. 971; People v. Adams, 351 Ill. 79, 183 N.E. 810; People ex rel. Novotony v. Jarecki, 372 Ill. 208, 23 N.E.2d 60; Durki......
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... ... Fidelity & Deposit Co ... (N. Y.), 78 N.Y.S. 584; Rittenhouse & Embree Co. v ... Brown & Co., 254 Ill. 549, 98 N.E. 971; Empire ... ...
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...World's Pastime Exposition Co., 126 Ill. 373, 18 N. E. 809;Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055. In Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549, 98 N. E. 971, it was held that material used in making forms into which concrete was poured did not come within the provision......