| Ill. | Jun 19, 1907
delivered the opinion of the court:
Appellant’s first contention is, that the clause in the contract in which O’Brien agrees to furnish, whenever requested, a release from any liens or right of lien amounted to a waiver of lien. The portion of the contract referred to is the last clause of section 8, viz.: “All payments shall be made upon written certificates of the superintendent, to the effect that such payments have become due and according to the provisions of section 35 of the law of Illinois referring to sub-contractors’ liens, as in force July I, 1887, and as amended and in force July 1, 1891; also furnishing, whenever requested, to the party of second part, a release from any liens or right of lien.”
Section 35 of the Lien law of Illinois as in force July 1, 1887, required that when any payment became due any original contractor, or when he desired to draw any money on his contract, he should first furnish to the owner a sworn statement, giving the names of all subordinate contractors or persons furnishing material and labor. It further required that the owner should retain out of the moneys due, an amount sufficient to satisfy the subordinate contractors according to said statement, and until those conditions were complied with the contractor had no lien or right of action against the owner. The section as amended by the act in force July 1, 1891, changed the conditions imposed, to the.effect that such original contractor, as often as requested, in writing, by the owner, should make such statement, the same to be under oath, if required by the owner, with a provision for forfeiture in case of failure to furnish the required statement, etc. The object of this section was to enable the owner to fully protect himself from subordinate liens when making settlement with the original contractor. The clause in O’Brien’s contract refers very specifically to this section 35, and calls attention to the fact that it refers to subordinate contractors. It seems to us clear that in making this portion of their agreement the parties to this contract had in mind subordinate contractors only. The provision was inserted for the benefit of appellant, so that in settling with O’Brien it might fully guard against his subordinate contractors and material-men. The authorities cited by counsel for appellant where liens were denied were cases in which there was a bond given or an express waiver of lien in the contract. We cannot give to the clause in question the force of an express waiver of lien. We do not think that it was intended to bind O’Brien to release his own right of lien without payment, but that he merely agreed to furnish releases from his subordinate contractors on request. '
This reasoning applies with equal force to appellant’s second contention, which is, that the covenant to release was an independent covenant as a part of the original contract, and did not depend for its validity on the payment of the contract price by the owner. Construing this clause to be an agreement to furnish releases from other parties, only, who might have furnished material or labor on his contract, we think O’Brien was relieved of the obligation to do so by the failure of appellant to pay according to its agreement. Besides, it is not shown, nor is it claimed, that he was even requested to furnish releases until the demand for the release of his own right of lien and for the dismissal of his petition was made during the progress of the hearing before the master.
Appellant’s amended answer to the petition avers that petitioners are not entitled to a lien “because complainant O’Brien received collateral security for a large portion of the contract price of said work,” enumerating several acceptances on various parties, amounting to some $4600. It is not contended that collateral security was taken for the whole contract price of the work done or for the amount shown to be due by the final certificate of architect Wheatley. The contract price was, by the terms of the agreement, payable in installments, upon the proper certificate of the architect. The acceptances were applied as payments upon amounts certified to be due. What more force could they have under the terms of the contract than mere partial payments? Most of them were upon W. P. Dickinson & Co., who were the financial agents of the appellant company, and $150,000 of the company’s bonds were placed with Dickinson & Co. for sale, and they were made the agents for the disbursement of the proceeds of such sale. Payment by them was payment by appellant. Mr. Rolf, an officer of said apartment house company, testifies that when certificates were made they went over to Dickinson, and that was the way payments were made. Prom the evidence it clearly appears that O’Brien and the architect, Wheatley, met Rolf, the secretary of the apartment house company, at Rolf’s office, where the whole matter was gone over, everything figured into the account and a settlement arrived at. As a result of this conference and settlement Wheatley issued his final certificate as architect, showing the work completed in a satisfactory manner, and further showing that there was due O’Brien, as a final balance, the sum of $4568. This occurred on August 10, 1896, at which time a credit of $249.97 was entered on the certificate by agreement. All the acceptances mentioned in appellant’s answer appear to have ante-dated Auguist 10, 1896. The amount allowed by the master and, for which a lien was granted by the trial court was $4105, which shows that other credits were allowed after the issue of the certificate by Wheatley.
It is contended that the evidence of the issuing of this certificate by the architect was not sufficient. The loss of the certificate was sufficiently shown to justify the court in admitting proof of the contents. Rolf, the secretary of the company, testified such a certificate was given to O’Brien. He gave to O’Brien a statement to that effect, as follows:
“Chicago, February 18, 1898.
“This is to certify that a final certificate of $4568 was issued by the Concord Apartment House Company in favor of W. D. O’Brien, August 10, ’96.
A. A. Rolf, Secy.”
Rolf testified that the above statement was correct. In the absence of any denial the certificate and its contents were certainly well established.
The fifth and sixth points raised by appellant, taken together, are to the effect that to support a mechanic’s lien the contract must provide for the completion of the work and the making of payment at a time fixed, and that the original contract entered into by the parties to this appeal was discharged by limitation of time and a new contract made, in which no time was fixed for completion of work and payment for same. The original contract was in writing, dated May 28, 1895. It stated the price of the work to be $8550, fixed the time for completion of the work at September 15, 1895, and provided for final payment within thirty days from the completion of the work. Said contract also provided that in case "O’Brien was delayed about his work through no fault of his, the time for completion should be extended for a period equal to the time lost by such delay. The evidence shows "that O’Brien was delayed through the fault of the appellant; that when the appellant asked him to go ahead with his work he refused, because the price of material and labor had increased; that appellant recognized the justice of this contention, and on December 21, 1895, made the following endorsement on the original contract:
“Chicago, December 21, 1895.
“We hereby agree to pay said first party the additional sum of $1500, same being for the increased cost of material to be used in the building.
The Concord Apartment House Company,
By Carl Findeisen, President,
A. A. Rolf, Secretary."
Upon this endorsement O’Brien began the work and completed it on August 10, 1896, as the architect’s certificate showed. The testimony of Rolf, the secretary, shows that when O’Brien refused to go ahead with the work unless the price of the work was increased, the question of the proposed increase was submitted to the board of directors of the company, and the increase, as above, was authorized. Rolf says that in that connection nothing but the proposed increase was discussed by the directors. In view of all the facts we cannot construe this endorsement to work a new agreement upon the whole subject. It can only be taken as an extension and modification of the original contract of May 28, 1896. Under this view of the contract we think the time for the completion of the work and the making of payment was provided for sufficiently to meet the demands of the law.
Finally, it is contended that in casting up the account between the parties hereto the master improperly omitted several items that should have been credited to appellant, and also that the item of $518 for extras was improperly included in appellees’ claim. It appears from the testimony of both Rolf and. O’Brien that at the time of making the final certificate by Wheatley the question of extras was fully discussed between O’Brien, Rolf and Wheatley, the outcome of which was that the $518 was included on the face of the certificate and a credit of $249.97 was endorsed thereon by Rolf for extras not allowed. It is true that in his findings the master says that he finds the claim for extras, amounting to $518, was not well proven and is therefore disregarded by him; but it must be remembered that appellees claimed the $518 for extras as an additional sum. The master, finding that said item had been settled between the parties when the certificate was issued, disregarded it here and took the amount represented in said certificate as the basis for his statement of the accounts, allowing credits for such sums as were proven to have been made since the certificate was issued and charging other items becoming due appellees since August 10, 1896. We see nothing inconsistent in the master’s report on this point. Appellant showed that the American Radiator Company obtained a judgment against Dickinson for $1246.08, but failed to show payment of the same or any part thereof. O’Brien is still liable to the American Radiator Company for said sum as the proof stands, and the Concord Apartment House Company should not be credited with this sum without showing payment. The other items called into question are small and not well proven. We are inclined to think that the accounting was fairly done and the amount found due substantially correct.
We find no sufficient grounds for reversal in the record but are of the opinion that justice has been done the parties in this judgment, and it will be affirmed.
Judgment affirmed.