Kankakee Coal Co. v. Crane Bros. Manufacturing Co. , 1888 Ill. App. LEXIS 51 ( 1888 )

Lacey, P. J.

This was a petition to foreclose a mechanic’s lien and to subject the premises, which were the lands of the coal mine of appellant, the Kankakee Coal Company, to sale for the payment of the purchase price of a “horizontal link motion engine for hoisting purposes,” which was purchased and placed on the premises for use, and for which appellant coal company promised to pay $2,200 in installments. ■ The court, upon answer, evidence and stipulation, decreed a lien for the amount and interest, amounting to $2,803.09. From this decree this appeal is taken.

Several objections are made by the appellants to the decree:

1. The petition is insufficient in that it fails to show that the contract for the purchase of the machine provided for its being placed on any particular tract of land. 2. ¡No time was specified in the contract when the machine was to be furnished. 3. The court erred in sustaining the master’s ruling in not permitting the defendants to put in evidence the written contract, under which the hoisting machine was manufactured. 4. The notes were not given in evidence for the machine, nor produced on the trial as accounted for.

We shall first consider the first point made in reference to the sufficiency of the petition as regards the place where the engine should be placed. The petition in this regard alleges “ that, on the 14th day of March, 1883, * * * said coal company made application to your petitioner to furnish.it, for use in its coal mine on the lands hereinafter named, one horizontal link motion engine for hoisting purposes, and that on the 14th day of March, 1883, your petitioner and the said coal company made a contract for said hoisting machine, to be delivered on board the cars in Chicago.” The lands thereafter named in the petition were the W. IN. E. J, and E, J, IN. W. J, and S. E., IN. E. Sec. 19, T. 32, Range 9, east; and the averment is that, “ in pursuance of said agreement (appellees) delivered said hoisting engine to said coal company, and that it was then shipped to the land of said coal company and put in use on said coal land,” etc. The averment in the petition as to where the machine was to be used when purchased is riot as clear as it might be, but, taking the entire petition together, we think it sufficiently appears that the contract contemplated that the machine was to be used where it was placed on the coal lands of the appellant above named. The statement in the petition that bv the contract the machine was “ to be delivered on board of the cars in Chicago,” does not negative the averment that by the contract it was also finally to be sent from there to be placed on the premises in question. That, we think, was also contemplated by the parties according to the contract mentioned in the petition, or at least implied from what it stated. The admission- that the contract was made as stated in tlie petition strengthens the case, as, if the petition was insufficient, the appellants should have abided their demurrer. We think the petition is sufficient in the particular complained of.

We do not think the objection made, that the petition does not aver that the engine was only placed on the E. -J-, JST. W. Sec. 19, T. 31IST., R. 9, in Kankakee county, is valid. While the petition makes this statement, it also makes the averment that the engine was placed and used on the entire coal lands of the company. The statement that the machine was placed on this particular piece of land does not necessarily negative the idea that it was placed on the entire property of the company, of which this eighty acres formed a part.

The second point in the objection,that no time was mentioned in the contract, when the machine was to be furnished, we think, under our present statute, is not well taken. The statute of 1874 makes contracts express or implied, or partly express and implied, enforcible.

The case of Fish v. Stubbings, 65 Ill. 492, was overruled in Orr v. N. W. Mut. Life Ins. Co., 85 Ill. 261, and Cloak v. Manning et al., 90 Ill. 380. The time in which the engine was to be furnished was not fixed, and therefore the law implies that it was to be furnished within a reasonable time, and valid under Sec. 1 of the Mechanic’s Lien Act of 1874, E. S., p. 665, as being partly expressed and partly implied; and under the third section of the act, as the machine was furnished within a year from the date of the contracts, the lien attached. Driver v. Ford, 90 Ill. 595.

The court did not err in sustaining the master’s ruling in not permitting appellant to introduce in evidence the written contract for the purchase of the machine. The appellants had already admitted the contract as stated in the petition, and no good purpose could have been served by admitting the written contract; and more especially as it was not pretended that it showed anything different from the one set out in the petition. This disposes of the third point. As to the fourth objection, in regard to the notes not being produced on the trial, we think if appellants had a right to call for their production, snch right has been waived.

It was admitted that the notes had not been paid and there was no demand made^for their production at the trial. They were past due, and no point of this kind was made in the court below, and we think the objection should not be allowed here, to reverse the decree.

Under the mechanic’s lien law, the right to enforce a lien similar to this, was held in Dobschuetz v. Holliday, 82 Ill. 371.

The objection that the rights of the mortgagee, H. C. Konklin, are not protected by the decree, is not well taken. The party interested in that matter, Konklin, has not appealed, and appellants can not assign for error matters which do not affect them. The same may be said as to the rights of any others claiming mortgage or other liens. Reed v. Boyd, 84 Ill. 67. The objections against the decree are of a purely technical character, and without substantial merit. The decree appears to be just, and the amount for the engine due. The decree is therefore affirmed.

Decree affirmed.