Gen. No. 10,799; Gen. No. 10,798 | Ill. App. Ct. | Feb 13, 1904
delivered the opinion of the court.
It is urged on the part of appellant Eichardson, that the statement of claim for lien filed by Central Lumber Company, appellee, is wholly insufficient to justify the enforcement of a lien against said’appellant as a purchaser.
The statute provides that no contractor shall enforce the lien against or to the prejudice of a purchaser, as was Eichardson, “ unless within four months after the last payment shall have become due and payable according to the terras of the original contract, he shall either bring suit to enforce his lien therefor or shall file with the clerk of the Circuit Court of the county * * * against the owner, a claim for lien verified,” etc. R. S., chap. 82, sec. 21, section 7 of the Lien Act. The original verbal contract as set up in the petition of Central Lumber Company does not state, as is required by section 6 of the Mechanic’s Lien Act of 1895, when final payment was to be made, whether within one year from the date of contract or not. There was therefore nothing to show that the suit was brought or claim for lien filed “ within four months after the last payment shall have become due and payable,” as the statute requires. That statement of claim shows that the material was all furnished within a year from the date of contract, but not that the contract called for final payment to be made within that time.
By the amendment, however, to the, petition of Central Lumber Company, which amendment was filed May 17, 1901, it is stated that in and by said verbal contract before referred to, it was further understood and agreed “ that all of said materials should be delivered within four months from said 7th day of December, 1898, and that said building * * * should be completed within four months from said 7th day of December, 1898, and your orator was to be paid for said lumber and building materials to be delivered, when the same were so delivered.” By this amendment a contract is set up which does provide for final payment within a year from the date of the contract.
As has been said, the statute requires, in order to enforce a lien against, a purchaser, that “ within four months after the last payment shall have become due and payable according to the terms of the original contract,” either suit must he brought to enforce the lien, or a claim for lien shall be filed with the clerk of the Circuit Court. According to the amended statement of the contract, the final payment became due on the last delivery of the material, which was April 27, 1899. This suit was brought April 13,1900, more than four months after the last payment became payable. But the claim for lien was filed with the clerk of the Circuit Court, August 16, 1899, which was within the required-four months. As filed, the claim for lien did not comply with the requirement of the statute, (sec. 6 of Mechanic's Lien Act) and although that statute expressly authorizes its amendment as to the owner “ on the hearing of a suit to enforce the lien,” it makes no such provision as to a purchaser. Such amendment was made in this case, but as it is not applicable to a purchaser as was Richardson after the original contract was made, what is said in May Brick Company v. General Eng. Co., 180 Ill. 535" date_filed="1899-06-17" court="Ill." case_name="May, Purington & Bonner Brick Co. v. General Engineering Co.">180 Ill. 535, 542, in a suit' brought to enforce a lien under the act of 1874 as amended by the act of 1887, is in point, and no amendment can cure the defect. The decree in favor of the Central Lumber Company must be reversed.
The claim of the architect under thp answer in the nature of an intervening petition was denied, and an appeal is prosecuted from that order. His verbal contract was that he was to be paid as the work progressed, final payment to be made six months from the completion of the drawings and specifications, which were completed January 21, 1899. The contract was made December 15, 1898. The price was to be three and a half per cent, on the cost of constructing the buildings. The buildings were not .completed but were in course of erection when this cause was on hearing in the trial court. The architect was by this contract to be paid a percentage on the actual cost of the buildings, and that had not been stated and was not determined. Payment was to be made from time to time, which evidently means, as the work progressed. As the building was not completed, it was impossible to ascertain what would be the cost of the building and hence what compensation he would be entitled to under the conti’act. What is said in Freeman v. Rinaker, 185 Ill. 172" date_filed="1900-04-17" court="Ill." case_name="Freeman v. Rinaker">185 Ill. 172, is clearly applicable, and the Superior Court did not err in sustaining the exception in that regard to the master’s report.
We find no error in the decree denying the relief sought by Turnock as intervening petitioner, and as to him it must be affirmed.
Reversed in one ease and affirmed in the other.