Provost v. Shirk
79 N.E. 178
Ill.
1906
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

This is an action arising under the Mechanic’s Lien law. The statute regarding mechanics’ liens has always been held by this court to be in derogation of the common law and must be strictly construed. The lien should be fairly enforced when the party brings himself within the provision of the statute, but should not be extended to cases not provided for by the language of the statute, even though they fall within its reason. May Brick Co. v. Engineering Co. 180 Ill. 535, and cases there cited; Kelly v. Northern Trust Co. 190 id. 401; Freeman v. Rinaker, 185 id. 172.

We are clearly of the opinion that the statement filed by Provost in the circuit court against the estate of Clarke (that part of it touching upon the interest of Shirk being set forth in the statement of this case) does not indicate in any way that there was any demand against the interest of Shirk, and was not sufficient to charge his interest in the premises with the lien. (Ehdin v. Murphy, 170 Ill. 399; Campbell v. Jacobson, 145 id. 389.) No one, in reading that statement, would for a moment think that the claimant was attempting to make any interest that Shirk might have in the premises, subject to the lien. His .name is only used in the statement in order to make definite the lease by which Clarke obtained the interest in the premises which Provost was attempting to make subject to the lien. The attempt in the ninety-nine year lease to prevent Shirk’s interest being made subject to a mechanic’s lien under the provision quoted in the statement, was correctly held by the Appellate Court, under the authority of Crandall v. Sorg, 198 Ill. 48, to be invalid. Notwithstanding this provision in the ninety-nine year lease, Shirk’s interest, if proper steps were taken, could have been made subject to a mechanic’s lien.

The contract of Clarke with the Hallowell Granite Company provided that the work should be done under the direction of the architect, and that “in case any difference of opinion should arise between said parties in relation to the contract or work to be performed under it, * * * the decision of William G. Barfield, architect, should be final and binding on the parties.” No architect’s certificate for the work done by this company was offered in evidence, and there is nothing set forth in the pleadings or proof as a reason for not procuring it and putting it in evidence. It is true that on the statement of the claim filed in the probate court there was the endorsement: “This bill is O. IC., except the last item.—W. G. Barfield, Arch.” We do not consider this a compliance with the contract. The Hallowell Granite Company should either have procured a certificate of the architect or shown a good and sufficient reason for failing so to do. Gilmore v. Courtney, 158 Ill. 432; Michaelis v. Wolf, 136 id. 68.

Appellants insist that the Appellate Court is wrong in holding that the contract as to both appellants provided for payment of a portion of the contract price more than one year from the time stipulated for the completion of the contract, and that thereby no lien was created by the work done under that contract. The contract of Provost provided that his work should be completed December i, 1891, and that notes should be given for thirty per cent of this amount on the completion of the building, payable on or before one year. The Hallowell Granite Company’s contract provided that their work should be completed in sixty days from August 4, 1891, and that the building should be completed May 1, 1892; that thirty per cent of the amount of the contract should be paid by a note due on or before a year from the date of the completion of the building. Section 3 of the Mechanic’s Lien law in force at the time these contracts were made, provides: “When the contract is expressed no lien shall be created under this act, when the time stipulated for the completion of the work * * * is beyond three years from the commencement thereof or the. time of the payment beyond one year from the time stipulated for the completion thereof.”' ■ Manifestly, under both these contracts the time of final payment was more than one year from the time of the completion of each of the contracts, respectively.

So far as we are advised this court has never ruled upon this identical question. The late Judge McAllister, in Simon v. Blocks, 16 Ill. App. 450, held that a contract providing for the payment by notes due more than one year from the date of the completion of the contract, even though the note was not given as provided, took the contract from under the Mechanic’s Lien act. To the same effect is Vanderpoel v. Knight, 102 Ill. App. 596. The facts in these cases are much more similar to the facts in the present hearing than are those in Gardner v. Hall, 29 Ill. 277, which on this point is relied upon by appellants. We have examined the decisions cited in other jurisdictions by appellants on this, point. The statutes construed in these cases are so much different from our own that these decisions cannot be very persuasive in assisting to construe the Illinois statute. We have also examined with care all of the decisions of this court cited by counsel or which we ourselves could find from cross-references and digests. The cases of Cook v. Heald, 21 Ill. 425, Cook v. Vreeland, 21 id. 430, Beasley v. Webster, 64 id. 458, Belanger v. Hersey, 90 id. 70, Paddock v. Stout, 121 id. 571, Chisholm v. Williams, 128 id. 115, McDonald v. Rosengarten, 134 id. 126, Compound Lumber Co. v. Murphy, 169 id. 343, and Lyon Lumber Co. v. Equitable Loan Co. 174 id. 31, all discuss principles which bear strongly upon the question here at issue, and the principles there laid down are in harmony with the conclusions reached in Simon v. Blocks, supra.

We are of the opinion that in both of these contracts the time of the payment stipulated for a part of the amount was beyond one year from the time of the completion of the respective contracts, and therefore appellants were not entitled to liens for the material and work under the Mechanic’s Lien act then in force.

The record in this case, together with that in Clarke v. Shirk, supra, discloses, as to the ninety-nine year lease and the building which Franklin D. Clarke started to erect on the premises in question, a very unfortunate condition of affairs and one seemingly of great hardship for all parties to this litigation; but this court cannot in this proceeding attempt to adjust all the equities for the parties concerned. The lien given under our law to material-men or mechanics is purely statutory, and can only be enforced in accordance with its strict provisions.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.