57 Ill. App. 194 | Ill. App. Ct. | 1894
delivered the opinion of the Court.
One Vaciar Hrdina made a contract with the appellee to build for her a house for $3,600. ' The appellant furnished hardware to Hrdina for the house, and $113 of the price remains unpaid.
For that he sued the appellee and Hrdina jointly under Sec. 37, Ch. 82, Liens. Hrdina died pending the suit, and a very serious question might be whether the suit thereafter could be prosecuted. It is not necessary to decide that question, for a condition precedent to the suit is, that money shall be due from the owner to the contractor.
Hrdina did not finish the house and the appellee employed others to complete it. If the provisions of section 45 apply to a suit under section 37, which it would seem difficult to maintain, as the distribution contemplated by section 45 could not be made in a personal suit under section 37, still under section 29 the owner is not to be compelled to pay, with certain exceptions, more than the original contract price, and here, upon the trial before the court without a jury, it appeared that the house had cost the appellee more than the original price, and it did not appear that at any time after the contract was made, was the appellee indebted to Hrdina; much less that she was so indebted at the time the appellant served notice upon her under section 30, or thereafter as contemplated by section 33. That notice was not served until some weeks after Hrdina had abandoned the work. The judgment must be affirmed.
