Von Platen & Dick v. Winterbotham

• Decision Date: 16 June 1903
• Citation: 203 Ill. 198,67 N.E. 843
• Court: Illinois Supreme Court
• Parties: VON PLATEN & DICK et al. v. WINTERBOTHAM et al.

203 Ill. 198

67 N.E. 843

VON PLATEN & DICK et al.

v.WINTERBOTHAM et al.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Appellate Court, First District.

Petition by Von Platen & Dick for a mechanic's lien against Amelia E. Winterbotham and another, and petition of intervention for a lien by the T. Wilce Company. From a judgment of the Appellate Court, affirming a decree overruling exceptions to the master's report and dismissing the petitions, petitioners appeal. Affirmed.

Dunn & Hayes and H. W. Gleason, for appellants.

John Schwender, for appellee Winterbotham.

CARTWRIGHT, J.

The appellants Von Platen & Dick filed in the superior court of Cook county their petition for a mechanic's lien on an apartment house and lot in Chicago, as subcontractors, against the appellees, Amelia E. Winterbotham, owner of the premises, and W. J. Reynolds, the original contractor; and the appellant the T. Wilce Company, a corporation, filed its intervening petition for a lien on the same premises as a subcontractor under Reynolds. The petition and intervening petition having been answered and replications filed, the issues were referred to a master in chancery, who took and reported the evidence, with his conclusion that neither the petitioners nor the intervening petitioner were entitled to liens, and he recommended that both petitions be dismissed for want of equity. The court heard the cause on exceptions to the master's report, and they were overruled, and the petitions were dismissed. The Appellate Court for the First District affirmed the decree.

The original petition alleged that prior to August 3, 1898, the defendant Amelia E. Winterbotham entered into a contract with W. J. Reynolds for the erection of an apartment building, and agreed to pay him a large sum of money, the exact amount of which and other terms of the contract being unknown to petitioners; that on said day petitioners contracted with Reynolds to furnishthe mill work; that no specific time was set for the completion of their contract, which was made by a written proposition and acceptance, but a reasonable time, to wit, within one year, was implied, payments to be made as deliveries progressed, and final payment on the completion of delivery; and that the original contract and subcontract were performed. The intervening petition of the T. Wilce Company alleged that on April 4, 1898, W. J. Reynolds made a written contract with Amelia E. Winterbotham, the owner, for the carpenter work of an apartment building on the premises, for a consideration of $12,776; that on September 15, 1898, Reynolds entered into a parol contract with said company, whereby it was to furnish the hardwood flooring; and that said contract was performed prior to November 1, 1898. To the intervening petition was annexed a copy of the original contract between W. J. Reynolds and Amelia E. Winterbotham for the carpenter work on the building, to be performed on demand of the architect, so as to cause no delay in completing the building. The petition and intervening petition averred notice and the necessary facts in case the contracts created liens under the statute.

The findings of fact by the master, adopted by the court and recited in the decree, are to the effect that Amelia E. Winterbotham, on April 4, 1898, entered into a contract with W. J. Reynolds to do the carpenter work in the construction of the building; that the petitioners, Von Platen & Dick, on August 3, 1898, entered into a contract in writing with Reynolds to deliver and furnish the mill work for $4,000; that petitioenrs furnished and delivered substantially all the mill work, and that there remained unpaid therefor $1,335.50; that Reynolds and petitioners substantially completed their respective contracts; and that petitioners served notice of the lien on the owner, in due time, on October 25, 1898. The findings in reference to the T. Wilce Company were that on March 31, 1898, Reynolds entered into a contract with said company to furnish the hardwood flooring for the building at such times and places as should be required by him, the implied time being within the space of one year; that the company delivered the materials by October 5, 1898, of the total value of $1,122, and, after deducting items of expense and the value of material returned, the amount due was $1,100.18; and that notice of a lien was duly served.

The master stated in his report that he based his conclusion that the law did not allow liens to the petitioners or intervening petitioner upon the fact that no specific time was fixed in either of the subcontracts for the performance of the same or for payment. This was a conclusion of law from the facts. The petitioners and the intervening petitioner each filed exceptions to the conclusion of the master on the question of law, and the exceptions were overruled by the court, and the same reason for dismissing the petitions and denying liens was stated in the decree. The exceptions as to the legal conclusion of the master were neither necessary nor proper. Where the master states the facts correctly, it is not necessary for one who claims that the master is mistaken as to the legal consequences of the facts to except to the report. Exceptions relate to maters of fact,...