Rothgerber v. Dupuy

Decision Date30 September 1872
Citation1872 WL 8350,64 Ill. 452
PartiesLEONARD ROTHGERBERv.AARON N. DUPUY.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Mr. R. H. FORRESTER, for the appellant.

Messrs. RUNYAN, AVERY, LOOMIS & COMSTOCK, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action brought by appellee, before a justice of the peace of Cook county, against appellant and John Milne, to recover for work and labor performed in the construction of a house.

Appellant, in the justice's court, in abatement of the action, denied all joint liability with Milne, but on the trial in that court plaintiff recovered a judgment for $67.35 and costs. From this judgment an appeal was prosecuted to the circuit court of Cook county. The cause was tried in that court, when the jury found a verdict for the same amount.

A motion for a new trial was entered, but was overruled by the court, and defendant, Rothgerber, brings the case to this court on appeal.

It appears that Ann Hyman, being the owner of a lot in the city of Chicago, employed appellant to build a house thereon. A contract was drawn and entered into by the parties, and it was placed in the hands of Selby, the architect having the superintendence of the construction of the building. Appellant employed Milne, as a sub-contractor, to erect the building, and Milne employed appellee, as his sub-contractor, to do the work. Appellee insists that, as appellant claimed to be the owner, he has the right, under the Mechanic's Lien Law, to recover the unpaid balance due him for work on the building, from appellant and Milne.

The Mechanic's Lien Law of 1869, sec. 1, provides that every sub-contractor, mechanic, workman, or other person, who shall, in conformity with the terms of the contract between the owner of the land and the original contractor, perform any labor or furnish any materials in building the house, etc., shall have a lien for the value of such labor, etc., upon such house.

The second section provides for a notice to the owner by the person furnishing labor, etc. The fifth section confers the power to bring suit for the amount due, by the sub-contractor, against the owner and the contractor jointly.

The question presented and urged is, whether the provisions of this statute can be extended to the sub-contractor of a sub-contractor. He is not embraced in the terms of the statute, but it is urged that he falls within the spirit of the enactment. This class of statutes is opposed to common right. They confer special privileges and rights upon one class of community not enjoyed by others; and courts, in construing such statutes, confine them to the provisions of the law, and require that the case shall be brought clearly within their provisions before relief will be granted. Such laws are not extended by liberal construction to embrace cases not in the language of the statute.

Again, this lien created by the statute is secret in its character, the holder of it being required to do nothing to apprise purchasers or creditors of its existence. For these reasons, we can not believe the legislature intended to embrace within the operation of the law any but those whom they have expressly named. We can, therefore, only apply the statute to sub-contractors, and can not extend it indefinitely to successive sub-contractors. Appellee, not being a sub-contractor, but a contractor under a sub-contractor, can not be protected by this statute, as he does not fall within its provisions. As appellant was not the owner, he could not be sued jointly with his sub-contractor.

This statute seems to be substantially the same as an act adopted by the general assembly of New York, applicable to the city of New York; and the Supreme Court, before its reorganization, held, in construing the act, that the workman under a sub-contractor had no lien, and could not compel payment from the owner. The provision of that act is, that every mechanic, workman, or other person doing any work in the erection of any building in the city of New York, built under a contract in writing between the owner and the builder, or other person, whether such work be performed as journeyman, laborer, cartman, sub-contractor, or otherwise, and whose demand has not been paid, may deliver an attested account of the amount and value of the labor thus performed and not paid, to the owner, who was required to retain the amount out of the subsequent payments to the contractor for the benefit of such workman.

It will be observed that statute is quite as comprehensive as ours, but the court held that the lien was not extended to a workman employed by a sub-contracter. Wood v. Donaldson, 17 Wend. 550. The case was taken to the Court of Appeals (see 22 Wend. 395), where the judgment of the Supreme Court was affirmed.

The Supreme Court of Pennsylvania, in the case of Harlan v. Rand, 27 Penn. (3 Casey) R. 511, under a statute somewhat...

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15 cases
  • Race v. Sullivan
    • United States
    • United States Appellate Court of Illinois
    • 30 Abril 1878
    ... ... Clement, 3 Scam. 201; Stephens v. Holmes, 64 Ill. 336; Rothgerber v. Dupuy, 64 Ill. 452; Canisius v. Merrill, 65 Ill. 67.That the court should have set aside the decree, because the property was sold for a grossly ... ...
  • Cairo & St. Louis R.R. Co. v. Cauble
    • United States
    • United States Appellate Court of Illinois
    • 31 Julio 1879
    ...JUDD & WHITEHOUSE, for plaintiff in error; that the statute relating to liens for materials must be strictly construed, cited Rothgerber v. Dupuy, 64 Ill. 452; Huntington v. Barton, 64 Ill. 502; Canisius v. Merrill, 65 Ill. 67; Dunphy v. Riddle, 86 Ill. 22; Crowl v. Nagle, 86 Ill. 437. The ......
  • Langford v. Mackay
    • United States
    • United States Appellate Court of Illinois
    • 31 Diciembre 1882
    ... ... Homes, 64 Ill. 336; Rothgerber v. Dupuy, 64 Ill. 452; Canicius v. Merrill, 65 Ill. 57; Belanger v. Hersey, 90 Ill. 70. Complainants must recover, if at all, upon the theory of ... ...
  • The PhŒnix Mut. Life Ins. Co. v. Batchen
    • United States
    • United States Appellate Court of Illinois
    • 31 Marzo 1880
    ...lost if not diligently pursued: Cook v. Heald, 21 Ill. 429; Kinzey v. Thomas, 28 Ill. 502; Brady v. Anderson, 24 Ill. 112; Rothgerber v. Dupuy, 64 Ill. 452; Huntington v. Barton, 64 Ill. 502. Mr. DAVID FALES, Mr. E. B. PAYNE and Messrs. MILLER & FROST, for various appellees; that there is n......
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