Richardson v. Central Lumber Co. , 1903 Ill. App. LEXIS 4 ( 1903 )

Mr. Justice Windes

delivered the opinion of the court.

It seems necessary to consider only two questions presented by this record, viz.: the sufficiency of the statement of claim for lien filed by appellee in the Circuit Court, and of the contract on which the lien claimed is based. Section 7 of Ch. 82, Hurd’s Rev. Stat., as to mechanics’ liens, provides in substance that no contractor shall be allowed to enforce a, lien as against a purchaser, unless, within four months after the last payment under his contract shall have become due and payable, he shall either bring suit to enforce his lien, or “ shall file with the clerk of the Circuit Court of the county in which the building, erection or other improvement to be charged with the lien is situated, against the owner, a claim for lien verified by the affidavit of himself, agent or employe, which shall consist of a brief statement of the contract, the date the same was made, the date fixed therein, or the time implied, for completion and for final payment, and the date that the same was completed, if completed, the balance due after allowing all credits, and a sufficiently correct description of the lot, lots or tract of land to pass the title thereof by deed of conveyance.”

Section 6 of the same act provides as follows:

“ If the work is done or materials are furnished under a verbal contract, no lien shall be had by virtue of this act unless the work shall be done or materials furnished within one year from the date of the contract, and final payment therefor is to be made within such time.”

The bill in this case was filed more than eleven months after the last material was .delivered, according to the evidence and the 'statement of claim filed in the Circuit Court, and more than ten months after the last payment became due, according to the allegations of the amended bill. Richardson became the purchaser of the premises by deed, which was recorded on July 22, 1899, the same day the statement for claim of lien was filed in the Circuit Court. It was essential, therefore, under the statute quoted, before appellee could have a lien, that he file his statement of claim therefor in accordance with the statute. It fails to appear from the claim for lien which is quoted in the statement preceding this opinion, that any time is named therein when the lumber and material contracted to be furnished and delivered to the Andersons were to be delivered, but only that the last installment thereof was delivered on April 5, 1899; nor does it appear from said claim that any time is shown when the last payment for such lumber and material was to be made, except that payment was to be made on the last delivery of the last installment of said lumber and material. Because there is nothing to show when the last delivery of lumber and material was to be made, it follows that there was no time fixed for the last payment. It seems clear, therefore, that the statement of claim for lien is not a compliance with the statute.

If, however, it could be said that the statement of claim does comply with the statute in this regard, there could be no lien under the contract set forth in the statement, for the reason that under section 6, as has been held in the late case of Williams v. Rittenhouse & Embree Co., 198 Ill. 602-10, the contract being a verbal one, there could be no lien unless it provides by its terms that the work should be done or materials furnished within one year from the date of the contract, and final payment therefor should, by the terms of the contract, be provided to be made within the same time. It is clear that the contract set forth in the statement of claim for lien states no time within which the lumber and material were to be delivered, and, as above stated, no time for the making of the last payment therefor. Section 7 of the statute above quoted provides that the claim for lien, among other things, should contain “ a brief statement of the contract.” Appellant, in purchasing this property, had a right to rely upon the matters stated in this claim for lien, and since it states a contract which would give the appellee no right to a lien, he should be protected therefrom.

Moreover, if we consider the case under the allegations of the amended bill, there could be no lien, because the claim for lien offered in evidence shows an entirely different contract from that alleged in the amended bill.

There being no right of lien in favor of appellee, the decree of the Superior Court is reversed.