27 Ill. App. 130 | Ill. App. Ct. | 1888
We think the petition sufficient to entitle petitioners to relief, and that the court erred in sustaining the demurrer.
It was not necessary that appellants should set out the terms of the original contract between the Munsters and Dick, or show by allegations that it was such a contract in its terms as would authorize a lien when sought by the original contractor against the owner. A sub-contractor is given a lien if, in pursuance of the purposes of the contract between the owner and the original contractor, he furnishes labor or material in building any house. Sec. 29, Chap. 82, R. S.
The petition states that a contract was made between the Munsters and Dick, whereby Dick agreed to supply labor and material for, and do the carpenter work and painting and glazing on the building to be erected on Munster’s lot; that after the making of said contract, Dick made a contract with petitioners to furnish certain lumber to be used in the erection of said building, to be delivered at such times during the construction of the building as said Dick should direct, and to be paid for on delivery; and that, pursuant to said contract, petitioners delivered said material to the amount of §196.46, and that all said material so delivered was actually used in the construction of said building located on said lot.
The failure of Dick to pay for the said material is alleged, and the service of the proper notice on the Ministers, and it is stated that at the time said notice was served the sum of $1,275,'provided in the original contract to be paid by said Munster to said Dick on account of the erection of said building, remained to be paid. When we first considered this case we were inclined to hold that the petition should allege that something was due from the owner to the original contractor at the - time of the notice, or that the owner should have become indebted to him thereafter upon the contract. Consideration of the different sections of the lien act, however, leads us to a different conclusion.
The object of the petition is to assert a claim under section 45 of that act, and the allegation is that after the material was furnished by petitioners, and had been used in said building, but before the same was completed, Dick abandoned work on the same and surrendered to the Munsters, and that the said unfinished building was, at the time of its abandonment, reasonably worth a large sum over and above the aggregate of the amounts paid thereon, and of any damages sustained by reason of the non-fulfillment of the original contract for the erection of said building, which sum was greater than the amount petitioners claimed.
It is manifest that a petitioner seeking a lien and being obliged to work it out under the 45tli section, could not allege that there was anything due to the original contractor. It could not be said that anything was due him under the contract, when it appears that he lias failed to perform the contract, and abandoned the Avork.
The case is not to proceed under that section on the theory that there was anything due to him. The OAvner is liable for so much as the work and material should be sIioavu to be reasonably Avorth according to the original contract price, first deducting Avhat shall have been rightfully paid under the contract, and such damage as the OAvner has sustained by the failure to complete the work, Mehrle v. Dunne et al., 75 Ill. 239.
The owner may of course be compelled to produce at the hearing the original contract, and disclose fully his payments and transactions under it. To require the petitioners to state those matters in the petition, would be in effect to deny any relief under the 45th section, for the law furnishes a subcontractor no means of obtaining such information' before filing his petition.
The petition states a cause of action and requires an an-SAver, and for sustaining the demurrer thereto the decree must be reversed, and the case remanded to the Superior Court.
Reversed and remanded.
Garnett, J., took no part in the decision of this case.
