Claycomb v. CecilClaycomb v. Cecil
- Reporters:
- Before:
- Walker
Nо defect is perceived in the petition. It alleges, a contract was entеred into for the materials and labor to be employed in the construction of this building and upon the particular lot. That they were to be furnished and employed in this building, which was tо be completed, within the period allowed by the statute, to create such а lien; that it was completed within the time specified; that appellee was tо be paid what the labor and materials were worth, and at its completion. This fills the rеquirements of the statute, and if they were proved as alleged, a mechanics’ lien was created upon the premises.
It is, however, insisted, that the proof fails to sustain the petition, and that the sworn answer of appellant is not overcome by sufficient weight of evidence. The proof all concurs, that the building was completеd, as far as appellee’s contract extended, either in November or December, 1857, and that he furnished the labor and a portion of the materials, and their value is established by several witnesses. It also appears, that appellee and Warwick had been partners, but the latter testified, that the partnership terminated in January, 1857; this labor and materials had not been furnished by the firm, and that he had no interest in the сontract. McMahon testified, that appellant stated to him, that he had employed appellee to perform the labor, and had agreed to pay him. Foot testified, that appellant also informed him, that he had employed appellee to erect the building. Claycomb, appellant’s witness, testified, that appellee said to him, whilst the work was progressing, that Warwick was not in partnership with him. Squire testifiеd, that appellant informed him, in January, 1857, that appellee and Warwick were not in partnership, and that he had settled with them. This evidence abundantly establishes the faсt, that the work was not performed by the firm, nor under the contract with them, of April, 1856, but under a contract with appellee.
The evidence also shows, that appellаnt admitted, that by the contract, the work was to be completed before cоld weather, in the fall of that year. That the building was erected on the lot described in the petition: And notwithstanding there is no evidence that appellant, in terms, agreed tо pay appellee upon the completion of the work, the law implies such a contract, if no other terms were specified, and it is sufficient to suppоrt the allegation, that the labor and materials were to be paid for at that timе. Brady v. Anderson, 24 Ill. 110.
But this decree provides, that the property shall be sold within ninety days after the sheriff shall have received a copy of the decree, in the same manner as sales are made on executions at law. In the case of Link v. Architeсtural Iron Works, 24 Ill. 551, it was held, that as this sale is made without redemption, the court should, in the deсree, fix a reasonable time within which the money shall be paid, and in default of pаyment within that time, decree the sale of all or so much of the premises as would be necessary to produce the money. It was also said, that it was no more than equitable, that the defendant should have at least the lifetime of an execution within whiсh to pay the money, to prevent an irredeemable sale of his land. (See also Strawn v. Cogswell, decided at the present term.) By the terms of this decree, the sheriff might have advertised and sold the premises, at the expiration of twenty days after the adjournment of the court, upon being furnished with a copy of the decree at the timе when the court adjourned. Whilst every case must, to some extent, depend upon сircumstances, and the right to fix the time for the payment of the money is discretionary with thе chancellor, yet, in equity, the exercise of all equitable discretion by him is subject tо be reviewed by the appellate court. In this case, the time was too short. Owing tо the amount involved, it would not have been unreasonable to have given six months. For this error, the decree of the court below must be reversed, and the cause remanded, with instructions to the court below to enter a decree in conformity with this opinion.
Decree reversed.