Boylan v. Cameron , 1906 Ill. App. LEXIS 515 ( 1906 )

Mr. Justice Ball

delivered the opinion of the court.

We are compelled to affirm the decree of the trial court for the following reasons:

First. The allegations of the cross-bill of plaintiff in error and the proofs do not correspond. ' It is alleged in the cross-bill as amended December 7, 1903, that the contract on which he bases his claim for a lien, as entered into between him and the Central Brick & Stone Co., was a verbal contract. The evidence shows that the parties met June 1, 1900, and then agreed upon the terms of a contract. The next day they met again by appointment and then entered into the written contract which is set out in the statement of facts. Yerbal evidence as to what was said or agreed to before the contract was given is inadmissible to change or to vary a written agreement. Such evidence cannot be received to strike out or to add any clause to a written contract. All prior negotiations are merged in the written instrument. Marshall v. Gridley, 46 Ill. 250; Davis v. Fidelty Fire Ins. Co., 208 Ill. 382. It follows that the only competent evidence in the record of the agreement of the parties is the written instrument, and with that instrument in evidence we cannot look to the conversation they had prior to its execution, and therefore the repugnance between allegation and proof is so great as to prevent a recovery. A party complainant cannot avail himself of any fact established by the evidence which is not alleged in his bill. He is not permitted to state one case in the bill and to make out a different one in proof. Adams v. Gill, 158 Ill. 195. Further, the master struck out the evidence of Boylan as to this verbal contract when it appeared that there was a written contract. Counsel for Boylan asked the master to certify that ruling to the court, to which the master assented. We are unable to find in the record that the court was ever asked to pass upon this question, or that the evidence thus excluded was again offered. It follows that such evidence is not before us, and that the allegation that the parties entered into a verbal contract is not sustained by testimony.

Second. W hile the decree recites that the exceptions to the master’s reports filed by Boylan are overruled, we find no exceptions in the abstract, nor do we find an order permitting the objections filed before the master to stand as exceptions to those reports, or to either of them. In the absence of such exceptions we do not know what the court overruled, and therefore must presume that the decree in that particular is correct.

“Exceptions to the report of masters are in the nature of special demurrers, and the party objecting must point out the error; otherwise the part not excepted to will be taken as admitted.” 1 Barb. Ch. Pr. (ed. 1843) 191.

Where the master overrules the objections filed to his report, it is the duty of the objecting party after such report has been filed in court to appear there and file exceptions to it; and when this course has not been pursued, and no sufficient reason is assigned for not doing so, the report of the master, when approved by the court, will be deemed in the appellate tribunal conclusive upon the questions covered by it. Jewell v. Rock River P. Co., 101 Ill. 68.

The exception to this rule is where the master correctly states the facts, but draws an incorrect legal conclusion therefrom. In such case the court, taking the facts stated by the master to be true, will hear the objecting parties upon the question of -law without the filing of an exception thereto. Von Platen v. Winterbotham, 203 Ill. 202. The case at bar does not come within that exception.

Third. Plaintiff in error did not commence his suit within the time prescribed by the lien law. “ The remedy by a mechanic’s lien is cumulative to the ordinary remedy given by the common law, and is a privilege enjoyed by one class of. the community above all other classes; and, therefore, a party seeking to enforce it must bring himself strictly within the terms of the statute. Nothing can be inferred in his favor, but the law must be strictly construed.” Freeman v. Rinaker, 185 Ill. 179. Confessedly, Boylan was a subcontractor. He testified that he completed his contract July 17,1900, and that the money therefor then became due. Section 34, chapter 82 (Act of 1895) provides: “No petition shall be filed or suit commenced to enforce the lien created by sections 22 and 23 (relating to subcontractors), unless the same is commenced within four months after the time that the final payment is shown to be due the subcontractor, * * * ; provided, if any delay in filing such petition or commencing suit is caused in consequence of the final payment not being due the contractor, the time of such delay shall not be reckoned.” This section called upon Boylan to begin his suit within four months from July 17, 1900, if he wished to have the benefit of the act. This privilege expired November 17, 1900. His cross-bill, in the form of an answer, was not filed until December 20, 1900. Clearly this was too late. He cannot take advantage of the proviso, for the reason that the master found that he was not delayed in bringing his suit for a lien on said premises in consequence of the final payment not being due the contractor; to which finding of fact he took no objection before the master and filed no exception before the chancellor. Therefore, such finding, having been approved by the trial court, is conclusive upon Boylan upon this writ of error.

The decree of the Circuit Court is affirmed.

Affirmed.