*1 (No. 18024 . Plaintiffs in vs. et al. M. N. Catherine Kiefer
Emil al. Defendants in Error.) et N. (Emil Error. — Opinion June filed 1928.
Turner, Bullington, & in error. Holder V. Joyce, and P. for de- Louis Maurice Zerweck, fendant in error N. Emil Kiefer.
C. E. and H. F. DriEmryEr, for defendant in Pope, error the State and Savings Association. Loan
Mr. this Partlow reported opinion: Commissioner Defendant N. Kiefer a filed bill for Emil mechanic’s lien in the circuit court of St. Clair county in against plaintiffs error, Catherine M. Reis and Michael C. Reis. The State Association was Savings Loan made a defendant as a party mortgagee premises. The cause was to master, referred who recommended a overruled, decree as a decree Exceptions prayed. Kiefer, was in favor of an was entered appeal prosecuted District, to the Court for the Fourth where the Appellate affirmed, decree was cause to this court brought certiorari. by
The bill that on February 26, en- alleged 1923, into a contract with Michael C. and M. tered Catherine wife, husband and to build a house on a lot dwelling to the wife, according belonging plans specifica- that Kiefer architect; tions furnished an erected the and complied material labor furnished all house, was to receive that he and specifications; plans for extra work on the contract and total cost material, $14,393.94, making that of $8893.94; in a balance cash, leaving Kiefer re- that error; house was accepted refused. request of the balance and the quested payment Association bill that Savings State Loan alleged subject some interest in premises mortgagee, setting association answered, the lien of Kiefer. The loan on 5, error its made by up mortgage June Kiefer; to the lien of which it claimed prior a sworn made at the time the mortgage given, statement in which bills alleged writing had been done and material furnished paid; account work to a lien Kiefer waived his prior statement right of its to that of the the terms mortgage; *3 the a fee be was entitled to solicitor’s loan association taxed as costs. in their answer that were they
Plaintiffs in error alleged not in and that all charges indebted to Kiefer sum any the them had been admitted They ownership paid. but denied of the and the of house building property that that the as set forth in the denied bill; contract was extra material in the amount Kiefer had furnished labor and his that Kiefer had failed to with claimed; comply alleged wag the house built in a workmanlike contract and that in had as- that had manner; they cash, paid $5500 with the of all includ- concerned, consent sumed, parties a claim of Kiefer, ing Company, East St. Louis Lumber millwork in the for lumber and sum of sub-contractor, a the consent of all that had with assumed, $5476.11; they other sub-contractors concerned, claims of under the contract and material, for labor and both original $2816.28, which material, amounting for extra labor that had fully discharged; amounts paid they they the entire cost of which exceeded Kiefer $13,792.39, paid of and that and extras the sum $1322.76, building in sum to them the of Kiefer was indebted $1322.76. his bid Reis master that before Kiefer in found put that him he Kiefer a of $500; told would give preference contract, that Kiefer’s bid was $8647; prepared in was $8790, which contract signed, price the amount of the bid from which deduc- being plus tions for certain items leav- made, amounting $357 written ing contract price $8790; never Reis; returned to that the total amount of the con- tract extras was of which had been $13,705.46, a balance of that Reis had paid, leaving $8205.46; be sub-contractors which should to- deducted, for work on the gether stairway, On the of the amount due the question East $5406.28. which Reis claimed to have St. Louis Lumber Company, assumed the sum of the master found evidence did not the contention of Reis and he was support entitled to no allowance or payment assumption account; the total bill of the lumber $5476.11, which was due on the con- tract remainder extras; error were not entitled to deduction for defects in ma- terial or that the $326; amount due workmanship except interest at five cent from October per 12, 1923, that the $5348.39; executed mortgage by plaintiffs error to the loan association was a first lien, the writ- ten statement of Kiefer barred him from claiming pri- ority over this mortgage; authorized a solicitor’s fee $600; that a decree should be entered for *4 $5348-39-
The decree found was price $8790, contractor’s extras were general and the sub- $1973.71 contractors’ extras were a $2600.41, making total of $13,- had 364.12; been in cash paid and $5500 $2764.18 been in error to sub-contractors other had by plaintiffs paid than the lumber company; omissions,
entitled mistakes to a credit for and with interest balance due, together to October to December 12, 22, 1924, amounting to or a total of $5027.64; to loan a that it lien, association was first and was taxed a fee of instead of to be solicitor’s costs error. against plaintiffs allowed in error insist should have been they Plaintiffs Company, credit for the bill of East Lumber St. Louis claim have assumed they amounting an that they under between all of parties; agreement he not entitled the full amount due Kiefer and was allowed erroneous lien, to a therefore interest This claim the costs have been taxed Kiefer. should whether First, resolves itself into two parts: bill; to credit the lumber error were entitled company to that what the credit, if were entitled they second, The lumber of the credit should be. amount three board directors consisted of Its corporation. brother, Reis, Henry members: Michael C. his Reis was Henry corpora- O. Doussart. president J. tion; stockholder, director, Reis was general Michael C. stockholder, Doussart treasurer; manager the office. and had director, secretary, charge book-keeper the lumber millworlc furnished lumber company its house. Upon completion account sent Kiefer a statement of showing $5476.41 contract and due for and millworlc on with the statements for extras. This statement, together delivered sub-contractors, of account the other Reis Kiefer to Reis. testified requested and that be paid these bills the evi- but we think Kiefer. This was denied by such or at least acquiesced dence shows made a request
43 in such The an evidence shows that arrangement.
in error were most of the sub-contractors whose bills paid delivered to them Kiefer. master and the The by found, decree recited, that in error paid sub-contractors the other than Plain- lumber company. tiffs in error claim the not most of sub- they only paid but that bill contractors, they assumed the of the lumber it with the company agreed to and con- pay knowledge sent of all the of this parties interested; pursuance the agreement Reis account on the books of the lumber with the amount of the bill and company charged Kiefer’s was credited with therefore the account it, account was released as far Kiefer was concerned. The chan- cellor and the Court held the under facts, Appellate the did not constitute a novation pleadings, and plaintiffs were entitled to the credit for of this payment bill; that it was not so alleged and the pleadings evidence did not show an agreement parties. such
The essentials of a novation first, valid are, previous a valid of obligation; second, all of the agreement to a new contract; third, the the old extinguishment contract; fourth, of the new contract. validity Nat. Bank v. (Commercial Kirkwood, Ill. Walker 563; 172 Wood, v. id. Hayward Burke, v. 463; id. 121.) 170 When Kiefer delivered Reis the statement of account of the lumber claims of the together company, other and Reis sub-contractors, sub-contractors transfer on the caused books lumber com acts from such evidenced Kiefer to Reis pany, request the accounts. If that and com request accepted Reis it constituted a contract both plied binding Kiefer be will not heard to that he did not say parties, an consent to such Plis act such every shows arrangement. He consent and did request, agreement. not pay lumber bill or the other sub-contractors but left the pay ments to in error. entries on the books of Kiefer with the amount company crediting his the same to which entries Reis, bill charging an constituted made Doussart at request lumber agreement by accept Reis to bill and an payment agreement and therefore released same, It its cannot be said liability payment. *6 for this arrangement, did to agree lumber company in evidence show- the reason that its books were offered Kiefer. The release of ing acceptance of the three directors of transfers were made two of its affairs’. who were active charge lumber company, offered in at evidence, The bill of the lumber company D.” marked, i, is “Paid December O. bottom 1923.—J. the receipt are initials of Doussart and initials their Both in error in was in his handwriting. plaintiffs claim, of the lumber company set the assumption answer up deny them in a to that they therefore neither of position The evidence and the plead- consented to assumption. all of the sufficient to show a novation par- were ings entitled to credit in error were interested, ties plaintiffs lumber evidence was due the for whatever sum the showed from Kiefer. company
Kiefer that even though claims plaintiffs for amount of lumber credit company the lumber bill, he owed instead only company $3021.03 error, as claimed by plaintiffs $5476.11, to a Pie in- due Kiefer for which was entitled decree. two arises the difference between the amounts sists that the him with from the fact lumber charged company for which he millwork, charge all the extra made no in error for reason they agreed against plaintiffs the lumber for extra millwork the work company the master found that under the On this point progressed. and millwork for lumber Kiefer owed contract, original he owed for extra lumber not in- $3128.08; $960.11 eluded a total original contract, making charge which he a credit entitled to of $1067.08 for lumber returned or not delivered, leaving $3021.11 company; from him to the lumber that Kiefer in his state- ment of claim to in error made ex- no charge tra millwork but for extra for the only lumber, reason that plaintiffs in error the lumber agreed the extra millwork as the work It is admit- progressed. ted in error that the by plaintiffs charged against $5476.11 all included lumber and millwork under the origi- nal contract lumber and millwork for extras. The decree contained no on the specific finding question amount due from Kiefer for lum- ber and millwork under the contract lum- original and for ber for extras. The decree found that the that Kiefer’s extras were sub-contractors’ extras were a total of $2600.41, making $13,364.12. On this total in cash, $2764.18 paid by error to sub-contractors other than in error were company, entitled to a credit of for mistakes and omissions, leaving *7 due, interest. From this if amount, $3021.11 (the amount due the lumber and assumed by plain- tiffs in is deducted the error) balance is for which $1752.83, Kiefer would be entitled to decree, interest from October 12, the it record Upon presented impos- 1923. sible for this court to the the master that verify finding is the balance due from to the lumber com- $3021.11 for millwork and lumber under the pany and for lumber furnished extras but not extra including and we must these The millwork, as correct. accept figures for our to these the inability reason is that verify figures hundred which are not record contains several even pages or indexed. The record is abstracted into numbered thirty contain the evidence the errors only covering pages, in error. The abstract does not refer alleged by the of the record on which pages item of any particular evidence be may found. evidence of Kiefer and who were the witnesses who only testified to the amount due the lumber is scattered the entire company, through record. witness was the Each stand several times. In this condition of the record this court is not required search the record to the verify of the master as finding the amount due the lumber or to the find- verify company, of the master ing in error were to the pay for the extra the millwork as work pro- or that the the gressed, extra millwork was not included in statement of account furnished Kiefer to in er- ror. We therefore master finding accept was correct and that the was as agreement claimed Kiefer. This amount deducted from the balance found the decree to be due, leaves for which Kiefer is with in- decree, together terest from October 1923. of the Mechanic’s act that it provides
Section Lien owner, shall be the of the contractor to duty give of the owner to of the contractor before duty require 'the shall to the contractor due such any money owner pay of the names contractor, oath, a statement under writing, of all material and labor and amount parties furnishing due or to become due each. Merchants and dealers ma- to make the terial shall not be statements only required therein when owner provided. provides Section 27 he shall retain act, is notified as provided amount contractor an sufficient to money that are due the sub-contractors of whose claims demands he is shall over same to notified, entitled thereto. no provides payments Section 32 to the contractor shall be made as regarded rightfully if made the owner without ex- sub-contractors conferred rights or *8 ercising enforcing powers upon 22. Kiefer him in sections and furnished plaintiffs of with a list claims due as sub-contractors, provided error under oath. -in section that the statement was not 5, except It showing was both as however, by accepted, parties of due, amounts in error had notice amounts due due sub-contractors, amount including Under section 27, receiving company. upon notice from any error retain right all demands amount due an amount sufficient to pay their such sub-contractors, it became duty pay amounts retained to In com- thereto. with the 'pliance statute, provisions apart separate from novation, of a any question retain entitled to amount due Kiefer a sufficient amount to of all sub-contractors, including claims the lumber of about which amount there is no controversy. he
Kiefer’s He original bid testified $8647. bid, Reis, had an before he in his understanding put that he that Reis would him more than the bid; $500 con- was to be allowed a of over other preference $500 he com- tractors because had been a customer of the lumber was denied but years. by Reis, This many pany A the decree. slip was allowed the master $500 figures it, handwriting paper to which added $500, shows the bid this was deducted $357, being changes and from which was as price specifications, $8790 drawn Reis. Reis at- in the written contract stated this difference testifying tempted explain the esti- the contract because price below placed less mate approximately millwork amount of lumber and required, than the much more the would to determine how house was trying with the to Kiefer’s figures fig- according compared cost who bid. not think other contractors We do ures of contention, the chancellor was sustains this the evidence *9 warranted in that Kiefer holding was entitled to a $500 preference.
The mortgage the loan as sociation that in provided case of suit at law or equity wherein said should be a mortgagee party plaintiff or defendant it should be allowed reasonable attorney’s or solicitor’s fee, to be fixed the court in which such suit was to be taxed as cost. The decree fixed pending, solicitor’s fee of in er to be taxed against plaintiffs ror. No the fee, is made of the allowance of complaint but have been taxed error contend that it should Kiefer. The a fee was sustained allowance of such against in error cite Brown, in Huber Ill. Plaintiffs v. 274. the fee no their contention that should authority to support that it might be taxed who did not agree against virtue of the contract be so taxed. The fee was taxed by and it is between the and the mortgagee, mortgagor The reference to costs. pro controlled statute.with by any visions of the mortgagor binding upon The fee Kiefer. but were not mortgagee binding upon in.error. taxed properly ' decree of circuit court judgment'of remanded, cause Court will be reversed Appellate of Kiefer for to enter a in favor with directions decree 12, 1923, interest from October $1752.83, together the views above accordance with expressed. : The Mr.
Per Curiam foregoing opinion reported is as the Partlow hereby opinion Commissioner adopted therewith. entered in accordance “the court, judgment remanded, Reversed and directions.