Roulet v. Hogan

' Mr. Justice Wilkin

delivered the opinion of the court:

Why two petitions of the same date and so nearly alike find their way into the record is not explained, but inasmuch as the petition not abstracted by plaintiff in error conforms to the facts as disclosed by the remainder of the record, we agree with the Appellate Court in its conclusion and resolve all doubts in relation to these contradictory petitions against the abstracted one, for which no counsel appears willing to assume any responsibility. It will be presumed, in the absence of anything to the contrary, that the trial court, in overruling the prayer of the petition, acted upon the one which correctly stated the facts. Upon this state of the record we will only consider such questions raised by plaintiff in error as can be made by one who has been defaulted in the proceeding below and who seeks only to question the decision of the Appellate Court in its construction of the three instruments constituting the contract.

It is first contended that the three instruments upon which the petition for mechanic’s lien is based contain no provision as to the time of the completion of the work or making payment therefor, and that no part of the amount found by the master as due to defendants in error can be made a lien upon the premises under section 6 of the Mechanic’s Lien act. As to the first two instruments set forth in the petition, it is true they contain no such provision, and, standing alone, could not properly form the basis for a mechanic’s lien. (Freeman v. Rinaker, 185 Ill. 172.) But the contract of October 21, 1897, expressly provides that defendant in error Hogan “agrees to put in two radiators in each flat in said Adams street building, and to put said job in condition to fire up on or before the 25th day of October, 1897, and shall not be required to do any more work after that date, on said job, until payment of the sum of $1000,” etc., and stipulating for satisfactory security as to the remainder of the contract price. This is clearly an agreement signed by both of the parties for specified work and for the payment of a sum certain at a fixed time. If the $1000 could not be paid and security given for further work, nothing more was to be done by the contractor. When nothing was paid at the time stipulated, the work ceased and the right to a lien became complete. It would seem that all three of the instruments should be taken together and considered as constituting but a single contract. But it is of no importance whether they be considered one or three instruments. The concluding clauses of the last instrument is in itself a complete contract, complying with the conditions of section 6 of the Mechanic’s Lien act of 1895.

Other questions are raised by the plaintiff in error as grounds for reversal of the judgment of the Appellate Court, but we cannot consider them, inasmuch as we have already held that the plaintiff in error is confined to only such questions as may be raised by one who has been regularly defaulted below.

From a careful reading of the whole record we are satisfied that the judgment of the Appellate Court is right and that the scope of that judgment is fully justified by the averments in the petition. (Monarch Brewing Co. v. Wolford, 179 Ill. 252.) Its judgment will therefore be affirmed.

Judgment affirmed.