delivered the opinion of the court :
February 19, 1916, appellee filed its bill of complaint in the circuit court of Cook county to foreclose a mechanic’s lien on three certain lots in the city of Chicago for balance claimed to be due for furnishing material for the construction of buildings thereon. Helena Hecht, owner of the property at the time the contract was made, Wiley E. Hosier, owner of the property at the time the bill was filed, and others, were made defendants. Appellee in its bill alleged that it made its last delivery of materials to the premises on February 27, 1915, and that there was a balance of $1928.70 due it on such materials. September 16, 1916, the bill was amended by leave of court to show that the last delivery of material was made October 27, 1915. Appellant answered the amended bill, admitting ownership of the property in Helena Hecht at the time alleged in the bill but denying that the last delivery of material was made October 27, 1915, or that the last delivery was within four months prior to the date of the beginning of this suit. He averred that he became the owner of lot 3 of said property April 15, 1915, and that appellee had not furnished any material for the building after that date, and that it had not filed any claim for a lien with the circuit clerk prior to the bringing of the suit. The cause was referred to the master in chancery, who took proof and reported recommending the foreclosure of the lien in favor of appellee for the amount claimed. Objections to the report were overruled and were ordered to stand as exceptions. On hearing the chancellor confirmed the report of the master, entered a decree in favor of appellee and ordered the sale of the property on default of payment of the claim. On appeal the Appellate Court for the First District affirmed the decree and granted a certificate of importance. This appeal is prosecuted to review that judgment.
Appellant contends that the facts proven do not warrant the finding of the master that the date of the last delivery of material was October 27, 1915, or that there was any delivery of material within four months of the time of the bringing of the suit. Appellant did not assign and argue this point before the Appellate Court, as is made to appear by the certified copy of his brief and argument in that court filed in this court, and he has therefore waived his right to urge the point in this court. (Gunning v. Sorg,
The principal contention of appellant is that the original bill filed in this case failed to show by specific allegations that it was filed within four months after the date of the last delivery of material, and that the bill as amended stated the only cause of action that was stated in the case and must be considered as the beginning of this suit, and, therefore, not filed within the time required by the Mechanic’s Lien act. This contract was made September 15, 1914, and thg rights of the parties are governed by the law in force at that time. (Treloar v. Hamilton, supra; Eisendrath Co. v. Gebhardt,
Mechanics’ liens were not recognized by the common • law nor allowed in' equity independently of statute but they exist only by virtue of statutes creating them and providing a method for their enforcement, therefore such statutes must be strictly construed with reference to all requirements upon which the right to a lien depends. (Cronin v. Tatge,
As we have seen, section 11 of the act makes the date of the last delivery of material an essential and necessary averment, and section 7 limits the right of recovery to those cases where the bill or petition is filed within four months after the date of the last delivery of materials. It appears from the face of the original bill that the last delivery of material was on February 27, 1915, which was" more than four months prior to February 19, 1916, the date of the filing of the bill. It was essential to the jurisdiction of the court that the bill show on its face a cause of action. A cause of action includes every fact necessary for the complainant to prove to entitle him to succeed,—■ every fact that the defendant would have a right to traverse. (Walters v. City of Ottawa,
Appellee relies on Treloar v. Hamilton, supra, as conclusive of the question here presented. While it appears from the statement of facts in that case that the original bill stated no cause of action, the question was not passed upon by the court in its opinion and it does not seem to have been raised. The law in force at that time required the contractor to file with the clerk of the circuit court a claim, and further required that he commence suit within two years after the filing of such claim. The first amended bill, which was filed October 6, 1897, alleged the date of the filing of the claim to be October 7, 1895. December 2, 1904, when the cause came on to be heard on the report of the master and exceptions thereto, appellant moved to dismiss the bill because of a variance between its allegations and the proof. The variance pointed out was that the bill as amended alleged the filing by appellee of his claim on October 7, 1895, while the claim introduced in evidence was filed July 19, 1895. Appellee thereupon, by leave of court, amended his bill to conform to the proof, and the court held that “merely changing the date at which the claim for lien was alleged to have been filed from October 7 to July 19 was not the statement of a new cause of action.” That holding .was based upon the decision in Eisendrath Co. v. Gebhardt, supra. In the case last cited the amended bill corrected some errors of description of the building contract, and the court held that the amended bill did not state a new cause of action. The facts- in those cases are different from the facts' in this case and the decisions are not controlling.
Appellee contends, further, that section 12 of the Mechanic’s Lien act authorizes the amendment made in this case, and that such amendment must therefore be considered as effective from the date of the filing of the original bill. This was the view taken by the Appellate Court. That section provides: “The court shall permit amendments to any part of the pleadings * * * that are or may be authorized in proceedings in chancery, * * * and the rules of practice and proceedings in such cases shall be the same as in other cases in chancery, except as is otherwise provided in this act.” The section is merely declaratory of the right to amend, already permissible under the chancery practice in this State, and the rule that prevails in chancery 'practice would determine the time such amendments take effect. The section does not purport to authorize an amendment that shall be effective from the beginning of the original suit. .
Inasmuch as the lien was not established in accordance with the provisions of the Mechanic’s Lien act, the judgment of the Appellate Court and the decree of the circuit court are reversed.
T , , Judgment reversed.