128 Ill. 115 | Ill. | 1889
delivered the opinion of the Court :
It is said in the argument, that the time of payment was extended beyond one year from the completion of the work, and this defeated the lien. Section 3, chapter 82, of our statute, entitled “Liens, ” provides: “ When the contract is expressed, no lien shall be created if the time stipulated for the completion of the work or furnishing materials is beyond three years from the commencement thereof, or the time of payment beyond one year from the time stipulated for the completion thereof.” Here, the work was completed on the 15th day of September, 1883, and the note in question was made payable in nine months from that time,’ which would be less than one year, and clearly within the terms of the statute.
But it is argued that the extension of the time of payment for four months after the note became due, made the money payable more than a year from the time of the completion of the contract, and thus the lien was lost. The same question arose in Paddock v. Stout, 121 Ill. 572, and we there held that the extension of the time of payment after the execution of the contract would not defeat the lien,—that the lien depends upon the provisions which the contract makes as to the time of payment. Here, under the contract made by the parties, the time of payment was not extended beyond one year from the completion of the work, and complainants have not lost the lien conferred by the statute.
It is also claimed that Randolph had no interest in the premises in controversy on the 1st day of May, 1882, when he made the contract with the complainants, and upon this ground the decree is erroneous. Our statute does not require that a person should own the fee to enable a mechanic to obtain a lien. It declares: “The lien provided for * * * shall extend to an estate in fee, for life, for years, or any other estate, or any right of redemption or other interest which such owner may have in the lot or land at the time of making the contract.” The language here employed is very broad, and is sufficient to carry the lien to any title whatever that Randolph might possess when he entered into the contract. What title Randolph held when he entered into the agreement with the complainants we are not called upon to determine in this proceeding. The evidence shows that he was in possession of the premises, claiming to be the owner of the mill, when the contract was made. It also appears, that in 1881 the First National Bank of Charleston leased the premises to Neal Bros, for five years, with the privilege of buying. This contract was transferred by the Neal Bros, to Randolph as early as February, 1882, and he was placed in possession of the property. It will not be necessary to trace the title back from the First National Bank of Charleston, and show that the bank derived a title in fee or for years. It is enough that the evidence shows Randolph in possession of the premises, claiming title therein.
It is also claimed, in the argument, that the surrender of the note due June 15,1883, and the acceptance of the note of June 18, 1883, payable to Nordyke & Harmon Co., and the rendition of judgment thereon, was a payment of the original note, and a discharge of the lien given by the statute. If the last note, under an agreement of the parties, had been accepted as payment of the first note, there would be much force in the position of counsel; but such was not the case. It is shown by the evidence, beyond question, that there was no understanding or agreement that the last note should be accepted as payment of the first. We think it may be stated to be a general rule, that a new note given in renewal of another note will.not be regarded as a satisfaction of the original note, unless there is an express or implied agreement that such was the intention of the parties.
If we are correct in this position, then it is clear that the debt due on the 15th day of June, 1883, ($2105,) has never been paid or discharged, and as complainants have an assignment of the judgment rendered upon, the note given in renewal, and were prepared to cancel it when, the bill was filed, no reason is perceived why they could not maintain their bill, as held in the circuit and Appellate courts. But upon an examination of the decree rendered in the circuit court, it appears that the decree requires Bandolph to pay $2709.28 within a specified time, with interest from December 16, 1887. This was a larger sum than -was actually due. The basis of the decree should have been the amount due June 15, 1883,— $2105,—for which the original note was executed. Computing interest on this amount from June 15, 1883, until December 16, 1887, at six per cent,—four years, six months and one day,—the amount due will be $2673.70,— $35.59 less than the amount decreed to be paid.
As to the excess of $35.59, the decree of the circuit eoprt and the judgment of the Appellate Court will be modified. In all other respects they will be affirmed, each party to pay one-half of the costs in this court.
Decree reversed in part and in part affirmed.
