McDonald v. Rosengarten

35 Ill. App. 71 | Ill. App. Ct. | 1889

Moran, J.

Defendants in error filed their bill to foreclose a trust deed upon a certain leasehold interest in a lot situate in Chicago, and made plaintiffs in error parties defendant, as parties who claimed some interest in or lien upon the premises, and alleged that such interests or claims, if any, were subject to the lien of said trust, deed. Each of the ten plaintiffs in error answered and filed a cross-bill setting up a mechanic’s lien upon the leasehold interest for work done and materials furnished in the erection of a building thereon. On the hearing the court denied the liens claimed and dismissed the several cross-bills, which action of the court is assigned as error.

The contracts on which the respective claims for lien were based, were original contracts with the alleged owner of the leasehold, and were made in, the year 1S8S, after the amendments of the mechanic’s lien law passed in 1887, were in force. Various considerations a.nd arguments are urged against, and in support of the action of the court in denying the mechanic’s liens, and counsel have filed elaborate briefs and cited many authorities in support of these various contentious. We find it unnecessary to discuss all the points made by counsel, as we are of opinion that the action of the court must be sustained on the one ground, without reference to any other, that the plaintiffs in error failed to comply with the requirements of the act to amend the mechanic’s lien law approved May 31, 1887. By said act, section 4 of the lien Jaw was amended to read 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 of the county in which the building, erection, or other improvement to be charged with the lien is situated, a just and true statement or account or demand due him after allowing all credits, setting forth the times when such material was furnished of labor performed, and containing a correct description of the property to be charged with the lien, and verified by an affidavit. Any person having filed a claim for a lien as ^wovided in this section, may bring a suit at once to enforce the same by bill or petition in any court of competent jurisdiction in the county where the claim for a lien has been filed.”

Section 28 as amended is as follows: “Efo creditor shall be allowed to enforce a lien created under the provision of this act as against or .to the prejudice of any other creditor or incumbrancer or purchaser, unless a claim for a lien shall have been filed with the clerk of the Circuit Court, as provided in section four of this act, within four months after the last payment shall have become due and payable. Suit shall be commenced within two years after filing such claim with the clerk of the Circuit Court, or the lien shall be vacated.”

Plaintiffs in error attempted to comply with the requirements of section 4, by filing with the clerk statements which are all substantially alike, which give no items of the labor or materials, do not set forth the times when the materials were furnished or the labor performed, except that in some of the statements of claim, speaking of the performance of the particular contract or work for which the claim is made, it is stated that it was done or completed on or about May 25, 1888.

We think it at least doubtful whether such a statement of claim is a compliance with the statute.

The phraseology of section 4 is rendered inapt, clumsy and somewhat uncertain by the use of the conjunction “or” between the words “ account ” and “ demand,” and there is force in the suggestion of counsel for defendants in error that the true sense is rendered by rejecting said “ or” and inserting in its place the words “ of the,” so that the phrase would read “ a just and true statement or account of the demand due him.” However that may be, it is clear that the document to be filed with the clerk, whether it be called a statement, an account, or a demand, is required to set forth the amount due after allowing all credits, and the times when the material was furnished or the labor performed, and a correct description of the property to be charged with the lien. These requirements are certainly not met by stating the amount due in a lump sum, after deducting all credits, without stating any items composing the account, or showing what the credits were; and stating that the work or contract was completed at a certain time, without showing the time or times when it was commenced, or performed, or the period during which the materials were furnished or the labor claimed for rendered.

.The statute requires the statement of something more than the amount due after allowing all just credits. What is called for is a statement or account of the claim or demand, just and true; that is, amounts, dates and periods. Similar provisions in the statutes of other States have been construed to require itemized and detailed statements of the transactions on which the claim for lien is based. See 2 Jones on Liens, Sec. 1417, and Phillips on Mechanics’ Liens, Sec. 349, and cases cited by those authors.

It is contended by counsel for plaintiffs in error that the statute is to be liberally construed to effect its purpose in securing the lien provided for. The rule generally announced is that the law, giving, as it does, an extraordinary remedy to one class of persons, is to be strictly construed. Belanger v. Hersey, 90 Ill. 70; Stephens v. Holmes, 64 Ill. 334. Of course no construction is to be adopted which tends to defeat the object of the statute, but provisions of the law which are conditions precedent to the attachment of any lien, must be strictly complied with, and where the statute requires the giving of a notice of the filing of the statement and the characteristics of such notice or statements are specified in the statute, to hold that a notice or statement not setting forth the matters required was sufficient, would be to defeat the object of the law.

The statement or account which is to be filed is required to be verified by affidavit. None of the statements or accounts filed by the plaintiffs in error were verified by affidavit. Each claimant attached to the claim filed, an affidavit stating that he performed the labor and furnished the materials set forth in the above named statement of claim, and that there is now due him for said labor and materials, after allowing all credits and set-offs, the sum of (stating the amount claimed) which affiant charges and alleges is a lien upon the said above described premises. Such an affidavit is not, and does not purport to be a verification of the statement of accounts. To verify an account is the same as to verify a petition or a plea, and that is always done by making oath to the truth of the statement of the facts as set forth in the petition or plea.

The filing of a statement verified by an affidavit is essential to the creation of the lien. The statements, even if they would pass in other respects, were all fatally defective in this. Phillips on Mechanics’ Liens, Sec. 366; Conklin v. Wood, 3 E. D. Smith, 662.

Wo rest the affirmance of the decrees dismissing the cross-bills especially on this ground of lack of verification of the statements.

Decrees affirmed.