Schaar & Koch v. Knickerbocker Ice Co.

Mr. Justice Wilkin

delivered the opinion of the Court:

The first question raised on the record, and, in our opinion, the only material one to be decided, is, has the petitioner shown, by its allegations and proofs, that it was a sub-contractor of the alleged owner of the property, within the meaning of section 29, chapter 82, of the Revised Statutes.

It is insisted by appellants, that under the evidence the original contract was between the owner and O’Shea; that by the subsequent agreement between the latter and Roche they became sub-contractors for the brick and cut stone work, and that this petitioner is simply seeking to enforce a lien for material furnished to sub-contractors, or, as stated by the master in his report, the ice company was a “sub-sub-contractor,”' and therefore not entitled to a lien under the statute,—which view was adopted by the circuit court, and on that ground the petition dismissed. If the conclusion that the material for which the lien is sought to be enforced was furnished to.subcontractors is correct, previous decisions of this court are conclusive to the effect that the petition can not be maintained. Thus, it was said in Rothgerber v. Dupuy, 64 Ill. 452; “We can therefore only apply the statute to sub-contractors, and can not extend it indefinitely to successive sub-contractors.” (See, also, Smith Bridge Co. v. Railway Co. 72 Ill. 506.) In Ahern et al. v. Evans, 66 Ill. 125, the bill was brought by an employe under a sub-contractor, and it was held it could not be maintained. In Newhall v. Kastens et al. 70 Ill. 156, the inquiry -was stated to be, “whether the mechanic or workman performing labor, or a party furnishing materials, for a subcontractor, is entitled to a lien under the provisions of the statute,” and it was held he was not.

It is not denied, here, that the original contract for the buildings upon which the material was furnished by the petitioner was entered into between Kate M. Vandermark and Timothy O’Shea, individually. By that contract O’Shea agreed to put up the building, furnishing all work and materials, including the brick and stone work, for which the owner was to pay him $18,700. No separate price was agreed upon in that contract for the brick and stone work. A day or two after the contract was signed, O’Shea says he handed the plans and specifications to Boche, and stated to him s “ ‘Here is a contract I have just signed with Mr. Vandermark. There is a large amount of mason work in it, and if you wish to go in and take a half interest with me in the mason work, I would be pleased for you to do so,’ and he consented to figure on the plans and specifications, and see whether it would pay him to go in. He reported to me, and said that he considered that there was from $2000 to $2400 profit in the mason work; that he was well satisfied to go in with me as a partner. Says I, ‘All right—that settles it. Go straight on and make arrangements for your stone and brick, and do the best you can, and report to me.’ So we started in on it. I went to some parties and got prices on brick.”

It seems from this testimony, and it is uncontradicted, that Boche was in no sense a party to the contract with the owner. It was not made for or on his behalf. At that time, at least, the owner had in no way assented to his becoming interested in the contract. The relation between the owner of the property and O’Shea & Boche, as partners, was the same as though the brick and stone work had been sub-let to Boche alone. The owner had nothing to do with Boche or with O’Shea as to that particular part of the work, distinct from other parts of it. She had no contract with O’Shea as a partner of Boche, or as a joint contractor with him. It would not, we apprehend, be insisted that O’Shea could not, under the state of facts here shown, have enforced a lien for brick and stone work, as well as for any other material or labor furnished under his contract with the owner, in his own name. Individually he would be within the express terms of the statute,—a person contracting with the owner to furnish brick and stone work, with all other material and labor, for the erection of the building. Whether he performed the contract on his individual account, or through a firm to which he belonged, was a matter with himself. But he could not, without the consent of the owner, express or implied, transfer the contract, or any of his rights under it, to third parties. Suppose, upon the facts before us, the firm of O’Shea & Boche were attempting to maintain a lien for brick and stone work, would not the answer that they never made a contract with the owner for that work be a complete defense ? Could not the owner say, “I made no contract with or on behalf of the firm of O’Shea & Boche, neither did I make a separate contract for brick and stone work ?” These answers would clearly distinguish the case from Lombard v. Johnson et al. 76 Ill. 599, relied upon by appellants. There the partnership existed when the contract was made, and it was entered into for its benefit, and the action was upon the contract as originally made. In Work v. Hall, 79 Ill. 197, cited by counsel for appellee, it is expressly stated, that after the new members came into the firm of contractors, it had a contract directly with Wilson and Work (the owners) to furnish the remainder of the material, etc. We agree with the circuit court in the view that the dealings of the ice company were with mere sub-contractors.

Perhaps a simpler way of disposing of the ease is to say that the proof fails to show the parties to whom the ice company furnished the material for which it seeks to enforce a lien were contractors with the owner of the property. It is said in the opinion of the Appellate Court: “The arrangement between O’Shea and Roche was merely a method of compensation by O’Shea to Roche for his aid in the mason work • as a percentage on that part of the job. ” But if this be conceded as a matter of fact, the objection still remains, the bill makes no such case.

Counsel for appellee insist, that although the original contract was with O’Shea individually, yet the evidence' shows that the agreement between him and Roche was afterwards recognized and acted upon by Mrs. Vandermark. But again, the bill proceeds upon no such theory. It avers broadly that the contract, not merely for the brick and stone work, but for the building, was with O’Shea & Roche. There is certainly no view of the evidence upon which it can be said that Roche became a party to the entire contract, neither is there anything in the bill or the testimony to show that Mrs. Vandermark consented that he should become a party to any part of it, or that she agreed, at any time, to a division of the contract into parts. It is impossible to see how, under the evidence, there could have been a division of it. No separate price was fixed for brick and stone work, to be paid by the owner.

We are of opinion that the decree of the circuit court is in conformity with the law as applied to the facts as they appear in this record, and that the Appellate Court erred in reversing it. It is therefore ordered that the judgment of the latter court be reversed and the decree of the circuit court affirmed.

Judgment reversed.