90 Ill. 380 | Ill. | 1878
delivered the opinion of the Court:
This was a proceeding to establish a mechanic’s lien on the premises described in the petition.. In the contract between the parties the premises were not correctly described, but it is evident from the testimony the building was erected on property owned by defendant as described in the petition, and it is equally clear the work was done under and in pursuance of the written agreement. No time was fixed or specified in the contract within which the work was to be completed, and it is said petitioners, for that reason, can have no lien under the statute for anything due them under the express contract between them and the owner. This is a misapprehension of the law on this subject. The contract was entered into in May, 1873, was performed within one year, and hence the case falls under the provision of the law of 1861, which is as follows: " That chapter 65 of the Revised Statutes of 1845, entitled ‘ Liens/ shall be held to include implied as well as expressed contracts under which labor or materials are furnished at the request of any owner of land or town lot for erecting or repairing any building or the appurtenances of any building on such land or town lot, when no price is agreed upon or no time is expressly fixed for the payment of such labor or for the furnishing of such labor or materials: Provided, that the work is done or materials furnished within one year from the commencement of said work or the commencement of furnishing said materials.”
No explanation can render this section of the statute plainer than it is. Prior to its passage the act of 1845, entitled “ Liens,” was in force, and it had been held by this court not to apply to implied contracts or to expressed contracts where no time had been agreed upon for doing the work or furnishing the materials, or where no day of payment had been agreed upon. Undoubtedly it was to correct these defects in the law of 1845 that the act of 1861 was passed. No words could have been used to make the intention clearer. It was declared the former act should "be held to include implied as well as expressed contracts,” provided only, the work was done or materials furnished within one year from the commencement of the work or the commencement of furnishing the materials. This act was first passed upon in Roach v. Chapin, 27 Ill. 194. In that case the petition contained no allegation that there was any time specified within which the materials were to be furnished. It was said the objection would be fatal under the law of 1845. Reference was made to the act of 1861, and it was declared the case fell within its provisions. Hence the conclusion was reached, the want of such an allegation presented no ground for sustaining the demurrer to the petition. In the Chicago Artesian Well Co. v. Corey, 60 Ill. 73, it was ruled, the act of 1861 only requires, in order to create a lien so far as the agreement of the owner of the land and the mechanic or material-man is concerned, that labor or material should be furnished at the request of the owner for erecting or repairing any building on his laud where no price is agreed' upon or no time is expressly fixed for the payment of such labor or materials, provided the work is done or materials furnished within one year from the commencement of the labor or the commencement of furnishing the materials. It is apprehended it can make no difference whether the contract is express or arises by implication- from the acts of the parties. In either case the act of 1861 gives the mechanic or material-man a lien upon the premises for labor performed for or materials furnished the owner at his request for erecting or repairing any building on his land within one year from the date of the undertaking. No other agreement, express or implied, is necessary in order to the creation of the lien. The same construction of the act of 1861 is recognized in Freedman v. Carr, 75 Ill. 385.
The case of Fish v. Stubbings, 65 Ill. 492, seems to sanction a contrary construction of the act of 1861, but that case must have been decided without sufficient reflection, as no reference is made to the amendatory act of that date. Evidently it was thought the case was controlled by the act of 1845, as a case decided under that law is the only authority cited in support of the decision. The case of Powell v. Webber, 79 Ill. 134, inadvertently follows Fish v. Stubbings, and both cases, so far as they conflict with the previous decisions of this court, are overruled.
The rule adopted in the earlier cases on this subject was acted upon in Eyster v. Parrott, 83 Ill. 517, but without any discussion of the act of 1861.
Other matters of minor importance have been suggested in the argument, but it is not thought they require any discussion at this time.
The decree will be reversed and the cause remanded.
Decree reversed.
