33 Ill. App. 582 | Ill. App. Ct. | 1889
It appears from the evidence introduced at the hearing that a dispute arose between Bangs and Geary as to whether the building was ready for plastering at the time Bangs demanded the second payment of $400. Geary paid’ $200, and insisted that there was other work necessary to be done to get the building ready for plastering, and refused to pay the other $200 until said work was done.
Bangs stopped work and Geary requested him to go on and complete his contract, and served a notice on him, requiring him to do so, but Bangs declined to go on because Geary would not pay the additional $200 which he claimed to be then due, and abandoned the work, and Geary proceeded to complete the building by other workmen.
Granting that Bangs was right in his claim that the building was ready for plastering, and that the $400 was due him, still, under the contract between the parties, he would not be entitled to a lien if he abandoned the contract on Geary’s failure to pay it; whatever view may have been taken elsewhere, it is the rule in this State that the mere fact that money which is to be paid as fast as the work progresses, is not paid by the owner when, by the terms of the contract, it ought to be, will not authorize the abandonment of the work and the recovery of a mechanic’s lien for the work performed by the contractor unless the payments are made conditions precedent to the performance of the work by the express and positive provisions of the contract. King v. Sherman, 28 Ill. 520; Palm v. Ohio & Mississippi R. R. Co., 18 Ill. 217. The failure to pay an installment when due is not such an act or omission as will prevent the other party from completing the contract. In order to obtain a lien the contractor must show that he has performed his contract, or that he has been prevented from so doing by the act of the other party. Defendant showed by his petition, as well as by the evidence introduced at the hearing, that he had abandoned his contract and refused to complete, and he has not shown what amounts in law to an act of prevention by the other party to it.
The court erred in decreeing the lien, and the decree must be reversed and the cause remanded with directions to dismiss the petition at the costs of defendant in error.
Heversed and remanded.