166 Ill. 637 | Ill. | 1897
delivered the opinion of the court:
The only question presented by this record for decision is the alleged insufficiency of the statement of appellants’ claim for a lien or account filed with the clerk of the court. It was found by the master and the Superior and Appellate Courts that this statement was insufficient, and was not sufficiently verified by affidavit, under the statute. The provision of the statute in force when the statement was filed, applicable to this case, was as follows: “Every creditor or contractor who wishes to avail himself of the provisions of this act shall file with the clerk of the circuit court * * * a just and true statement or account or demand due him, after allowing all credits, setting forth the time when such material was furnished or labor performed, and containing a correct description of the' property to be charged with the lien, and verified by an affidavit.” (Hurd’s Stat. sec. 4, p. 884.) It is conceded in this case that the property was correctly described, and if the statement in other respects comes within the substantial requirements of the statute in being sufficiently specific and in setting forth the times when such material was furnished or labor performed, and was sufficiently verified by affidavit, appellants were entitled to the lien which was denied to them in the courts below.
This section of the statute has been frequently construed by this court. In McDonald v. Rosengarten, 134 Ill. 126, the affidavit was, “that the said company has performed the labor and furnished the materials set forth in the above statement of claim for a lien,” and it was held insufficient, as not stating the time when, etc. It was there said (p. 130): “The purpose of requiring the claim to set forth ‘the times when such material was furnished or labor performed,’ is, obviously, to enable those interested to know from the claim itself that it is such as can be enforced, and the verification by affidavit is required as a guaranty of the claim in this as in other respects. * * * It is merely an affidavit that claimant ‘has performed the labor and furnished the materials, ’ not as set forth, but, simply, ‘set forth in the above statement of claim,’ etc., and so may be true whether the time when was such that the lien cannot be enforced or that it can be enforced, since ‘performing labor or furnishing materials’ are acts merely, and mentioning them, only, is not descriptive or suggestive of any particular time.”
In Campbell v. Jacobson, 145 Ill. 389, the affidavit contained no statement of time at all, and this court said (p. 403): “The statements wholly failed to set forth ‘the times when such material was furnished or labor performed.’ * * * There is no attempt to give the date or dates of furnishing the material or the performance of the labor, nor is there anything in the statements from which those facts can be ascertained.”
In Springer v. Kroeschell, 161 Ill. 358, the affidavit was, “said labor was performed and materials furnished between September 18, 1890, and October 31, 1890,” and we there said (p. 365): “We think that this statement was sufficient, as the labor was done and the materials were furnished under an entire contract. ‘Where the work was done or the materials furnished under an entire contract, the different times when the work was performed or the materials furnished need not be stated.’ (Phillips on Mechanics’ Liens, sec. 359.) ‘Certainty to a common intent is all that is required in stating a mechanic’s claim, and where the law requires the time when the work was to be done to be set forth, a claim which states that the work * * * was done between April 16,1841, and August 29,1841, is sufficient.’—(Id. sec. 360.)”
In Hayes v. Hammond, 162 Ill. 133, it was said (p. 136): “Again, it is contended that the statement is defective because it does not show each day on which items for extra work and material accrued. The contract set out was an entire contract, which the statement showed was performed continuously, from day to day, between July 2, 1892, and September 7, 1892, and while this contract was being performed sundry extra work and material were furnished. The contract, being an entire one, constituted a single item, and it was not necessary to give each date on which some increased work or material was furnished in its performance.”
In Blanchard v. Fried, 162 Ill. 462, the statement was dated September 1,1892, at the top; and the items of lumber furnished were dated, but without giving the year, and it was held sufficiently accurate.
In the case at bar the contract was to furnish all the labor and materials in a building and to erect a certain building for Rickey, and the consideration for the undertaking was to be the cost of labor and materials and ten per cent additional as compensation. Such a contract would necessitate keeping an account of the material that went into the building and of the time expended in laboring on the same, and such an account was kept and set out in full in the statement, stating the items of material with great minuteness and the hours of the various kinds of labor, followed by a statement of the names of the persons who furnished the material, what it was and the price, as well as a -bi-weekly statement of the amount paid out as wages, giving date of pay-roll each time, the whole concluding with the statement “that the above mentioned material was furnished and said labor performed by said Grace & Hyde, pursuant to said agreement, between the 9th day of March, 1893, and the 17th day of June, 1893, and on said last named day the last of said material was furnished and the said agreement or contract completed on the part of said Grace & Hyde.” We are satisfied that the statement was sufficient, under the rule announced in the previous decisions of this court. The time during which the contract was performed is substantially stated, and affords sufficient information to enable those interested to know that it could be enforced. Instead of contracting for the work to be done for a certain lump sum, it was to be done for the cost of labor and materials plus ten per cent profit.
But it is contended that the items of credit for “material returned and labor furnished, §218.99,” and “cash received, $5600,” are lump sums, and should have shown specifically what they consisted of. This contention is devoid of merit. They are credits which go to reduce the amount of the lien, and afford sufficient information to all concerned that no claim for a lien is made for such amounts.
• It is also contended that the pay-rolls ought to have been more specific as to giving names and stating time. We are of the opinion that no such particularity is required by the statute. The statement, in view of the contract, was sufficiently specific.
But it is insisted that this was not an entire contract. In City of Chicago v. Sexton, 115 Ill. 230, a contract for a given sum for all of the work of a certain character required in the erection of a building was regarded as an entire contract, though the cost of each story was separately estimated, and though a power to declare a forfeiture might have been exercised to a part as well as to the whole of the work on a particular story. In Cary-Lombard Lumber Co. v. Fullenwider, 150 Ill. 629, a contract to furnish materials as the work progressed, to be paid for in monthly installments, so that on the first of each month a payment was to be made for materials furnished in the preceding month, was held to be an entire contract. It cannot be said here that Rickey contracted to pay for each piece of material as it went into the building or for each day’s work as it was performed, nor that his contract was for each piece of material or for each day’s work separately. On the contrary, his contract was for the whole job,—for all the material and for all the labor necessary to complete it,—and the mode of calculating the sum due did not deprive this contract of the character of an entire contract.
It is claimed that it was not an entire contract because there was no specific sum stipulated to be paid for the full performance of it. A contract to buy one thousand bushels of wheat at the market price on some particular day in the future would not furnish any specific amount to be paid at the time of making the contract, but no one would claim that it would for that reason not be an entire contract. Grace & Hyde agreed to build a flat-building for Rickey, and the contract furnished the data for calculating what would be due upon it when it was finished. The amount was certain, under the familiar maxim that that is certain which can be rendered so.
The next objection to the statement is, that it was not properly verified. The verification is as follows: “Frank D. Hyde, being duly sworn, deposes and says that the foregoing statement or account or demand due, by him subscribed, is true, to the best of his knowledge and belief.” It is claimed that the addition, “to the best of his knowledge and belief,” vitiates the affidavit. We are referred to the rule in regard to pleas in abatement—that such an affidavit would not be sufficient in their verification. Pleas in abatement are dilatory pleas, are not favored, and a high degree of certainty as applied to them is necessary, certainty to a common intent not being sufficient. We see no reason why the same rule should be applied here as to dilatory pleas. As said in Springer v. Kroeschell, supra, certainty to a common intent is all that is required in stating a mechanic’s claim, and as the statute merely says that the statement must be “verified by an affidavit,” no good reason can be perceived why any greater certainty is required in the affidavit than in the statement or demand itself. Besides, it will be noticed that this affidavit does not purport to be made upon information and belief, but states in positive language that the statement subscribed by affiant is true, and then is added the additional phrase, “to the best of his knowledge and belief.”
1We are referred to Globe Iron R. and C. Co. v. Thatcher, 87 Ala. 458, as holding that such an affidavit is insufficient. The affidavit there involved was, that “the foregoing statement is true as to the best of the affiant’s knowledge and belief.” The Alabama statute required a verification by the oath of the claimant, “or some other person having knowledge of the facts.” The court held that the affiant did not swear that he knew the facts to be true or that they were true without qualification, but that the most favorable construction to be placed upon the affidavit was, that some of the facts were known to be true, and others, though not within the knowledge of the affiant, were believed to be true. Our statute, however, is not so specific in its provisions relative to the affidavit, and we are not disposed to adopt so strict a rule, the only effect of which would be to defeat the operation of the statute in many meritorious cases, in which no one not learned in the subtleties of the law would doubt the sufficiency of the statement or its verification. This affidavit is made by one of the principals having knowledge of the facts, and he states that they are true, and we do not think that the addition of the phrase, “to the best of his knowledge and belief,” renders the affidavit uncertain. In making up his statement or account he would be compelled to rely upon his foreman for many of the various items composing it, and also upon others as to the title and description of the premises. We are'of the opinion that perjury could be assigned on this affidavit, (Johnson v. People, 94 Ill. 505,) and we must hold it sufficient. For further authority see Pratt v. Stevens, 94 N. Y. 387; Jackson v. Webster, 6 Munf. 462; In re Keller, 36 Fed. Rep. 681; 1 Ency. of Pl. & Pr. title “Affidavits,” 309.
The judgment of the Appellate Court and the decree of the Superior Court are both reversed and the cause is remanded to the Superior Court, with directions to allow the lien of the cross-complainants as prayed, and to enter a decree in the cause not inconsistent herewith.
Reversed and remanded.