21 Ill. 431 | Ill. | 1859
The agreement upon which this proceeding is based contains no specification as to the time when the work was to be completed by the contractor, or when the money was to be paid by the owner for the labor on this building, or the materials furnished for its erection. These are indispensable by the provisions of the statute to entitle the party to the benefit of the statutory lien. Both of these are required by the eighth division of the chancery code. Scates’ Comp. 157. The second section of which provides that, “ The lien shall extend to all work done, and materials furnished under the provisions of the contract, whether the kind or quality of the work, or the amount tó be paid, be specified or not: Provided, that the time of completing the contract shall not be extended for a longer period than three years, nor the time of payment beyond the period of one year from the time stipulated for the completion thereof.” The obvious intention of the legislature was to dispense with precision in the contract, as to the kind of work to lie performed and as to the specific amount to be paid, but to require the contract to fix and limit a time when the work should be completed and the money should be paid. And if by the terms of the contract the work was to be performed within three years from the entering into the contract, and the money was to be paid, by the express or implied agreement under which it was to be performed, within one year after its completion, then, and not till then, could the creditor, as between himself and the other party, avail himself of the benefit of the time. This section evidently refers to the making and entering' into the contract, when it prohibits the extension of the time for completing the work to three years, and the time of payment to one year after its completion. There cannot be anything else referred to but the contract, and that, we think, is the time fixed when the contract is first entered into by the parties, and not to a mere permission to complete the work . after the expiration of the time, or an extension of the time for payment beyond the period first agreed upon.
But the twenty-fourth section makes an alteration of the time for the institution of proceedings to make the lien available, where there are other liens upon the property. It is this: “ No ■ creditor shall be allowed to enforce the lien created by the provisions of this chapter, as against, or to the prejudice of any other •creditor or any incumbrance, unless suit be instituted to enforce such lien within six months after the last payment for labor or .■materials shall have become due and payable.” This provision, leaves the second section in force, except so far as it limits the time for instituting suit in case of creditors and incumbrances. .It in no way changes the necessity of stipulating for the completion of the work and the payment of the money by a time to be specified- by the agreement. It might be that if no time was fixed for the completion of the work, and nothing was said about when the money should be paid, that the law would imply a promise to pay when the labor shall be performed. But in such a case the lien could not attach unless the contract provided a time within which the work was to be completed. The law could not imply any time for its completion, and that .must be left to express contract between the parties.
In the contract, upon which this suit is based, no time is specified for the completion of the work, and the payment of the money, and was for that reason- insufficient to create a lien under the statute. And the petition contained no such averments and was therefore defective.
The court below, therefore, erred in decreeing the sale of the property to satisfy the appellee’s claim, and it must be reversed and the cause remanded.
Decree reversed.
