Wingler v. Niblack
| Decision Date | 31 March 1978 |
| Docket Number | No. 14579,14579 |
| Parties | , 15 Ill.Dec. 817 L. L. WINGLER, Plaintiff-Appellee, v. Edwin A. NIBLACK, Defendant-Appellant, and Mutual Home and Savings Association, Defendant. |
| Court | United States Appellate Court of Illinois |
Fuller & Hopp, Decatur, for defendant-appellant; Glenn O. Fuller, Decatur, of counsel.
Woollen, Brown, Hawkins & Basola, Elmer C. Hawkins, Gregory A. Mattingley, Decatur, for plaintiff-appellee.
The defendant, Edwin A. Niblack, seeks reversal of a $22,562.55 judgment entered against him in a suit to enforce a mechanic's lien.
The parties originally entered into an oral agreement whereby the plaintiff agreed to install cedar siding and a redwood deck to defendant's home and garage. The parties allegedly agreed that the total cost of the original project would be $4,800; $3,200 for the siding and $1,600 for the deck. Subsequent to installation of the siding and prior to commencement of the deck work, the parties allegedly agreed that the plaintiff would install a room addition over the garage instead of the deck. Apparently, there was no definite understanding as to the cost of the room addition. Defendant testified that the plaintiff agreed to construct the room for $2,000 more than the $1,600 estimate submitted for the deck. Plaintiff testified that defendant reviewed a rough plan for the addition and directed plaintiff to proceed with work on the room addition without agreeing to a definite increase in price.
After a trial at which the plaintiff submitted evidence showing that he put new cedar siding on defendant's home, constructed a 20' X 14' room, an 8' X 10' walk-in closet, and performed extensive insulation, electrical, and miscellaneous work necessary to incorporate the new addition into the remodeled structure, the court awarded the plaintiff a judgment for $22,562.55.
On appeal, the defendant filed a brief which fails to conform to the requirements of Supreme Court Rules 341(e) and 344(b) (58 Ill.2d R. 341(e), 344(b)). After carefully reviewing that brief, it appears to us that the defendant essentially contends that the trial court's judgment is erroneous, excessive, and contrary to the manifest weight of the evidence. We disagree.
The mechanic's lien was unknown at common law but was created in Illinois by enactment of the Mechanics Lien Act (Ill.Rev.Stat.1973, ch. 82, pars. 1-39). The lien rights created are, therefore, entirely governed by the Act and not by the rules of equity jurisprudence. Indeed, any deviation from this principle by the courts in expanding or contracting the literal provisions of the law places the courts in the position of impermissibly exercising a legislative function.
Extras are probably the largest single factor creating disputes between owners and contractors. An owner is frequently carried away during the course of construction and orders or consents to extras without fully understanding their ultimate impact on his cost. The contractor who supplies the extras does not have to tender a competitive bid in order to obtain the work. There is, therefore, a tendency on the part of some contractors to charge more for extras than the ordinary mark-up used in bidding for the work. The colorful comments of the trial judge certainly indicate that he felt this was the case here, although we need not reach that question because the record discloses that the judgment he entered was not contrary to the manifest weight of the evidence.
According to Watson Lumber Co. v. Guennewig (1967), 79 Ill.App.2d 377, 390-91, 226 N.E.2d 270, 276, a contractor seeking to recover for extras must establish by clear and convincing evidence: (1) that the extras were outside the scope of his original contractual promises; (2) that the owner requested the extras; (3) that...
To continue reading
Request your trial
-
Westcon/Dillingham Microtunneling v. Walsh Const. Co.
...is entirely governed by the Act, and the rules of equity jurisprudence are irrelevant at this stage. Wingler v. Niblack, 58 Ill.App.3d 287, 289, 15 Ill.Dec. 817, 374 N.E.2d 252 (1978); Wise v. Jerome, 5 Ill.App.2d 214, 221, 125 N.E.2d 292 (1955); see also Hill Behan Lumber Co. v. Marchese, ......
-
Duncan v. Cannon, 1-88-3007
...Biggs (1987), 156 Ill.App.3d 515, 520, 108 Ill.Dec. 918, 509 N.E.2d 614; Wingler v. Niblack (1978), 58 Ill.App.3d 3d 287, 289, 15 Ill.Dec. 817, 374 N.E.2d 252. Defendant argues that plaintiff failed to establish by clear and convincing evidence that the work in question was extra. She urges......
-
Wilmette Partners v. Hamel
...necessary by any fault of the contractor. Cases subsequent to Guennewig have followed its approach. Wingler v. Niblack (1978), 58 Ill.App.3d 287, 15 Ill.Dec. 817, 374 N.E.2d 252; R & R Construction Co. v. Junior College District No. 529 (1977), 55 Ill.App.3d 115, 12 Ill.Dec. 795, 370 N.E.2d......
-
R.W. Boeker Co., Inc. v. Eagle Bank of Madison County
...equitable liens cannot be imposed when a lienor fails to perfect his mechanic's lien. (Wingler v. Niblack (4th Dist.1978), 58 Ill.App.3d 287, 289, 15 Ill.Dec. 817, 818, 374 N.E.2d 252, 253; Hill Behan Lumber Co. v. Marchese (2d Dist.1971), 1 Ill.App.3d 789, 792, 275 N.E.2d 451, 453; Wise v.......