Trevette v. Commercial Loan & Building Ass'n , 58 Ill. App. 656 ( 1895 )

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

We are of the opinion that as to the said premises as they would have been had not the additional improvements in the third story, made under the contract of April 12, 1893, and the extra work, been done, appellants are by their conduct estopped from claiming a lien superior to that of appellee, from whom they received $8,000, under the representations in the certificates presented by them.

Upon the additional value imparted to the premises by the work done by appellants in the third story, and the extra work, for which they claim a lien of $1,738, they are entitled to a first lien.

While not approving of the conduct of appellants in failing, in presenting their certificates, to disclose to appellee the additional contract for work in the third story which they then had, and the extra work, yet as such work was not contemplated by the contract known to appellee upon which it paid the $8,000, we do not think that appellant should be deprived of a lien upon the additional value thus imparted. Their conduct was that of suppression, not of a positive direct statement that they had no contract other than that upon which they were paid in full; and it is not clear that by such suppression appellee has suffered any loss.

Upon the value of the premises without the improvements done under the contract for the third story, and without the extra work, for which appellants claim, a lien of $1,738, appellee has a first lien and appellants a second lien.

Upon the additional value added to the premises by said work done under the said contract for the third story, and the extra work, appellants have a first lien and appellee a second lien.

■The decree of the Circuit Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Appellants and appellee will each pay the costs by them respectively made in this court; neither will recover costs against the other.

Reversed and remanded with directions.