57 Ill. App. 417 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
It being necessary to the maintenance of a lien that the petitioner should -have filed with the clerk of the Circuit Court a verified statement of the amount due him, etc., appellee alleged in his petition that he filed such statement on the 23d day of June, 1893.
The holdings of this court in Bennett v. Armknecht, 50 Ill. App. 467, and in Moore v. Parrish, 50 Ill. App. 233, that as between an original contractor and the owner the filing of such statement is unnecessary, are overruled by Campbell v. Jacobson, 145 Ill. 389.
Upon the trial the complainant offered a paper as “ the sworn statement filed on the 23d day of June, 1893.” To the introduction of this, appellant objected for the following reasons:
First. That the statement had added to it an amendment since it was filed.
Second. That the statement as originally filed was not within the law.
Thereupon evidence was heard tending to show that the statement offered was not that filed; that the paper presented had been changed since it was filed.'
Among other evidence offered by appellant as to the alteration of this paper was the testimony of one M. D. Ewell, an expert as to handwriting and inks. This the court refused to receive. We think that such evidence should have been admitted. Rice on Evidence, Vol. 1, page 330; Greenleaf on Evidence, Sec. 440; James v. Johnson, 12 Ill. App. 288 (290); Aalewasser v. Hazlitt, 18 Ill. App. 243 (244); Quinsigamond Bank v. Hobbs, 11 Gray 250 (257); Fulton v. Hood et al., 34 Pa. State 365 (370, 371); Reese v. Reese, 90 Pa. State, page 89 (94); Dickinson v. Fitchburg, 13 Gray 555.
The court seems to have been of the impression that the document offered, being a paper filed for record in the office of the clerk of the Circuit Court, the chancery branch of the Superior Court had, in this proceeding, no authority to inquire into the fact of the interpolations and alterations having been made in such statement until it was filed. The document offered purported to be the very instrument that was filed in the office of the clerk of the Circuit Court on the 23d day of June, 1893; if it was not such instrument, if it had since the filing been changed, then it was not, as it appeared, admissible, but could only be received as it was when filed. A change, made at some time, appearing upon inspection of the document, it was competent for the court, indeed, its duty, when called upon, to ascertain in what condition the instrument was, how it read, in brief, what is the statement that was filed June 23, 1893.
This proceeding being a civil one, in order that the court should reject the paper offered or so much thereof as was necessary to restore it to the condition it was when filed, it was not necessary that the court should be satisfied beyond a reasonable doubt that the document offered in evidence and having the file mark of the clerk of the Circuit Court thereon, had been altered since the filing thereof.-
The statement purporting to have been .filed with the clerk of the Circuit Court, as admitted in evidence, contained the following as its only setting forth of the time when the work done and materials supplied were furnished :
“ The carpenter work and joiner work above referred to was done and all materials were furnished for the doing of said work between the 29th day of November, 1892, and the 23d day of May, 1893.”
The statute of this State thereby intended to be complied with, is Sec. 4, Chap. 82, R. S.:
“ Every creditor or contractor who wishes to avail himself of the provisions of this act shall file with the clerk of the Circuit Court * *' * a just and true statement * * setting forth the time when such material was furnished or labor performed.”
The statement filed gives a period of about six months within which materials were furnished and work performed.
All may have been done on the 30th day of November, 1892, or the 22d day of May, 1893.
It is insisted that as the claim here made is upon an alleged contract to do the work and -furnish the materials for building, according to plans and specifications, a certain house, the statement is sufficient.
If petitioner Avas to have a certain sum for building a house, then the house, labor and material would, under such contract, be done and* furnished when the contract was complete.
Such a statement as is presented in this case is not, under the contract alleged in the petition, a compliance with the statute. Campbell v. Jacobson, 46 Ill. App. 287; same, 145 Ill. 389; The Associates of the Jersey Co. v. Division, 29 N. J. L. R. 415-421; Noll v. Swineford, 6 Pa. State 187; 2 Jones on Liens, Sec. 1404.
The petition alleges that on the 29th day of November, 1892, petitioner made a written contract with appellant. The contract introduced in evidence was signed “ Elizabeth Sebastian, by Joseph Bettinghofer, Agent.”
Mrs. Sebastian denies that she ever gave Mr. Bettinghofer any authority to sign her name to the “ contract.” In view of the testimony of Mr. Bettinghofer that he did not sign the contract before the suit was begun, that it was riot signed at that time, but still he “ had it in his possession and could sign it any time he wanted to,” and that he signed the contract about a week before he testified upon the trial, and also in -view of other evidence, we do not think that his authority to sign appellant’s name to the contract was established.
The petition alleges that appellant made a written contract on the 29th day of November, 1892; the evidence, according to the testimony given on the petitioner’s behalf, is that no written contract was signed by her through Bettinghofer, her agent, until some time in 1894, about a year after this suit was begun; consequently no written contract was made by her until long after this suit was commenced.
For these reasons the decree of the Superior Court is reversed and the petition dismissed.
