Marsh v. Mick , 159 Ill. App. 399 ( 1911 )

Mr. Justice Smith

delivered the opinion of the court.

The principal question, as suggested in the foregoing statement, raised by the assignment of errors on the record, relates to the lien of appellee O’Meara. Hpon a careful examination of the evidence in this case, we are of the opinion that the decree is erroneous in so far as it allows the complainant, O’Meara, a mechanic’s lien upon the premises in question. The evidence in the record shows that the claim for a mechanic’s lien filed by O’Meara, and asserted in his petition for a lien, includes the total contract price for the completion of the cut stone work on the building, as well as an additional sum of $325 for extras. We think that the master was justified in his conclusion that by filing his claim for a lien he elected to rely on that claim, and that he did in fact rely upon the claim by setting it out in his petition for a lien; that O’Meara’s contract was an entire contract to furnish and set all the cut stone in the entire building, and that O’Meara was not entitled to a lien under the statute for materials delivered at the premises but not set in the building. It appears from the record that O’Meara sublet the contract for setting the stone in the wall to one Charles Lindle, for the sum of $550, and that the cost of setting the stone which was actually put in the building was $250. It does not appear what the value of the cut stone was which was delivered on the premises and not put into the building. In making and filing his claim for a lien in the office of the Clerk of the Circuit Court, and in asserting that claim in his petition for a lien, we think that O ’Meara was guilty of fraud; that he could not have honestly believed that he was entitled to the full contract price for the work which he had contracted to do, but which was not done, and that the attempt to claim a lien upon the premises so much in excess of the amount to which he was entitled, shows an intent on O’Meara’s part' to defraud the other lienors on the premises. It was a statement of a fact which he ought to have known, and in our opinion did know, was false. The evidence in this case satisfies us that it was deliberately and willfully made for the purpose of compelling appellant Marsh and others having liens on the property to pay him an unjust amount to clear the property of his claim, or resort to expensive litigation in regard thereto; and we think that because of the fraud thus practiced by O ’Meara in this regard his lien should be denied. We cannot believe, from the evidence in the record, that the amount claimed by O’Meara for a lien was a mere mistake or an error. We are compelled to believe from the evidence it was an overcharge to such an extent as to constitute a fraud.

By section 4 of the act of 1903 it is provided that in case of failure of the owner to comply with his part of the contract ‘ ‘ the contractor may discontinue the work * * * ” and “that in such a case the contractor shall be entitled to enforce his lien for the value of what has been done, and the court shall adjust his claim and allow him a lien accordingly.”' The statute does not give a contractor a lien for the whole amount of his contract, nor for the entire amount of his damages against the owner, because of a breach of a contract, but simply for the value of what has been done. If by reason of the default of the owner the contractor fails to complete his contract, a contractor is entitled to a lien for a part of his claim only. Under the present statute he is entitled to a personal judgment in a proceeding for mechanic’s lien against the owner for Ms damages because of such breach, instead of being compelled to resort to a separate proceeding at law.

Section 4 of the Lien Act recognizes what was the law as it previously existed, that if a claimant for a lien shall make such an overcharge as to indicate that it was done with intent to defraud, he cannot be allowed to enforce alien. Phillips on Mechanic’s Liens, sec. 525. O ’Meara, in his claim filed with the Clerk of the Circuit Court, stated what he knew was not the fact when he said that all the material, labor and services for which he claimed a lien “were used in and about the erection and improvement of the building on said premises,” and that there was justly due him the sum of $4,025. At the most, and under the most favorable interpretation and construction of the evidence, his proof shows that all the material and labor which was furnished and used in the erection of the building did not exceed the sum of $2,825. We think it cannot be said that the assertion of O’Meara in his claim for a lien for the sum of $4,025 is a mere mistake and error.

In Christian v. Allee, 104 Ill. App. 177, where the lienor untruthfully stated that the time of completion was extended and then accepted by the owner, the court said the authorities are that an untrue statement of a material matter will vitiate the claim. 1st Jones on Liens (2d ed.), sec. 1408; Foster v. Schneider, 2 N. Y. Sup. 875; Kling v. Ry. Co., 7 Mo. App. 410; Lynch v. Cronin, 63 Gray, 531; Crandall v. Lyon, 188 Ill. 87.

Where a party seeking a lien knowingly and willfully claims more than his due, he forfeits his lien. Jones v. Keen, 115 Mass. 171; Stubbs v. Clarinda College Springs, 62 Iowa 280; Gibbs v. Hanchette, 90 Mich. 657; Brennan v. Miller, 97 Mich. 182. The reason of the rule as stated in Nelson v. Withrow, 14 Mo. App. 270, is “that the owner of the building has the right to know, from the account filed, the amount which, under the law, has become a charge upon the property, in order that, by payment or tendering this amount, he may discharge the property of the encumbrances.”

In our opinion the evidence shows, as found by the special master, that the value of the land on which the improvement stands is $7,500, and the value of the improvements placed thereon is $2,500, making the value of the land and improvements $10,000. Appellant Marsh is entitled to a first and prior lien on the land and the proceeds thereof for the amount due under his notes and trust deed as found in the decree, together with his reasonable solicitor’s fees as found therein, and that each of the other liens found in the decree except that of O ’Meara, who is not entitled to a lien, as we hold, are subject to the lien of Marsh on the land or the proceeds thereof; and there should be set aside out of the receipts from the proportionate proceeds of the sale of the premises of the sum of $3,663.83 and interest thereon, being the amount found due appellant Marsh for the payment of the amount due Marsh, and the master should then apply the balance remaining of such proportionate share to the amounts due the workmen and laborers, and then the surplus, if any, to the other persons entitled to mechanic’s liens.

A personal judgment against Mick in favor of O’Meara should be entered in this proceeding for the sum of $3,133.71, being the damages found by the master for breach of contract, with interest from July 1, 1905.

Error is also assigned on that part of the decree allowing attorney’s fees to the masons, carpenters and laborers. We do not find, however, any objections or exceptions to the allowance of attorney's fees were made before the master or in the court below, and we think appellant Marsh who assigns error on this part of the decree has waived his right to raise this question. Haas Electric Co. v. Amusement Co., 236 Ill. 452.

The decree is affirmed in part and reversed in part and the causes are remanded to the Circuit Court with directions to enter a decree in accordance with the views herein expressed.

Affirmed in part, reversed in part and remanded with directions.