134 Ill. App. 173 | Ill. App. Ct. | 1907
delivered the opinion of the court.
Of course the decree, so far as it is in favor of William T. Gaines, must be affirmed. Solicitors for Gaines ask that it should be affirmed with ten per cent, damages, since it is practically admitted by the course of the appellant that the appeal was taken as against Gaines only for delay. We should be willing to do this if the appellant’s interests only were involved, but so to increase the amount of the adjudged lien in favor .of Gaines would be to impose on the principal defendant, Frank S. Thomazin, who has not appealed, an additional burden, which we do not think it just to do.
The appellant makes the objection to the decree so far as it declares and enforces a lien in favor of John J. Kratz and F. J. Schlitz, doing business as John J. Kratz & Company, that a different contract was proven from that alleged in their statement of claim, filed under the law in the office of the clerk of the Circuit Court February, 3,1905, and from that alleged in their answer or intervening petition filed in this case December 15, 1905. The variance is said to be .that in the statement of claim and in the answer that contract was alleged to be an entire one to furnish a certain amount of hardware and other material for $168.54, while the one proved was to furnish such hardware and other material as the defendant might order at market prices.
We do not think there is any such variance as is charged; certainly there is no fatal variance.
The statement of claim says that “on or about August 2, 1904, F. S. Thomazin made a verbal contract with the claimants, John J. Kratz and Company, to deliver certain hardware and goods and merchandise as from time to time selected for the building then being erected on said real estate;” also that “the claimants were to complete the delivery within a reasonable time after the goods were ordered;” also that the claimants “furnished hardware goods and materials on said premises of the value of one hundred and sixty-eight 54/100 dollars,” according to a schedule inserted.
The answer says the contract was a verbal one “to furnish work, labor and material; hardware, tinning and trimming supplies, and to do the work and labor required in installing said tinning work and other work connected therewith in and about” the buildings in question; that the claimants furnished material and labor under said contract within the time specified, and that “under the terms of said contract, they were to receive $168.54,” and that the “material and labor were reasonably worth $168.54.”
The proof was that Thomazin selected the hardware that he wanted, and got it as he wanted it; that it amounted, including gutters and downspouts put up at an agreed price, to $168.54; that the work and material were accepted and pronounced satisfactory by Mm.
The mechanic’s lien law could hardly be said to b.e “liberally construed as a remedial act,” as in itself it is provided that it shall be, if a fatal variance could be detected here.
So far as the decree declares and provides for the enforcement óf a lien in favor of Thomas Donlan, the same objection is made as to the Kratz and Schlitz claim, namely, that there is a variance between the statement of claim and the proofs, and between the answer and the proofs; and in addition the objection is made that Donlan lost any lien he might otherwise have had by abandoning his contract without justification.
The gist of the argument of appellant in favor of the first objection is, that the contract is alleged in the statement and in the answer to be a written one, while the contract proved is. an oral one.
Appellant concedes that a contract was made between Thomazin and Donlan, but says that it was not written." The contract was .not set out vn haec verba in the statement of claim for lien, but the terms of it are stated as they appear in the copy set forth in the answer and in the original introduced in evidence. Donlan made a proposition to Thomazin in writing, headed “Contract for Plumbing, Gasfitting and Sewerage at Nos. 7155 & 7159 Peoria St..” It contained a date, and the items of plumbing required and to be furnished for two cottages, and concluded: “This labor and material is to cost $410.00—$205.00 for each cottage, of which $75 on each cottage is to be paid plumber when job is rpughed in, and $130 on each cottage, more is to be paid him when the plumbing work is finished.”
This paper Thomazin signed “F. S. Thomazin” and returned to Donlan, who thereupon proceeded to do work and furnish material under it.
It is said by appellant that this is not a written contract because it does not disclose any party to it but Thomazin, and that it is wholly indefinite in not stating what has to be done. If further evidence in the case makes it a contract, it is said, it is not a written contract, but one partly in writing and partly oral, and therefore, “in legal effect an oral contract.” To this proposition are cited authorities to the effect that to make a contract “written,” the parties and the terms and provisions thereof must be ascertainable from the instrument itself.
In the present case the “plumber” is mentioned as the party who is to be paid, and it is plain that the owner of 7155 and 7159 Peoria street is the other party, and that the work and material to be furnished and the amounts and times of payment are set forth. The paper is signed by the “owner,” and was retained and presented by a “plumber,” who swears he made the proposition, took the contract, and entered upon the work. We think- the contract was in legal effect a “written” one sufficiently to. bring it within the description of it made in the statement and answer. But even if it did not answer that description, because it was partly oral and partly written, there would be no variance fatal to the right of recovery of a decree in this case.
Under the Mechanic’s Lien Act of 1903, no distinction is made between oral and written contracts. The rights to a lien under them are the same. The denomination, therefore, of the contract as a written one was wholly immaterial. If it was a mistake, it injured no one. The document was fully described in both statement and answer, and there was no surprise in its production in the form in which it existed. To defeat a lien on such an objection would certainly not be to construe the act “liberally aU a remedial act.”
The other objection, that Donlan unjustifiably abandoned the job before completion, depends on the theory that $150 was to be paid to Donlan when the plumbing work was roughed in on both cottages, and $260 when the plumbing work was entirely finished on both cottages. We do not so read the contract. It seems plain to us that it means that $75 was to be paid as soon as the roughing in of the work on one cottage had been done and $130 more when the work had been entirely finished on that cottage. Consequently when the plumbing work in one cottage had been entirely completed the final payment of $130 was due on that cottage. As it was not paid, Donlan was entitled to abandon Ms work on the contract and proceed to enforce Ms lien as provided by section 4 of the Act.
The objection made to the decree, so far as it declares and provides for the enforcement of a lien in favor of the Conklin Lumber Company, is based entirely on an alleged variance between the bill of complaint filed by the company, the statement of lien filed in the Circuit Court clerk’s office, and the proofs, each of these essential factors being said to differ from the other two.
The master in his report, in passing on this objection, disposed of it by saying: “While there was some slight variance between the pleadings and the proof, I do not consider it sufficient reason to recommend the disallowance of the lien,” and we are inclined to affirm the court’s action in- confirming this report with much the same brevity in the reasons.
The statement of claim said that “the materials were not furnished in pursuance of any express contract, but upon orders given from time to time by said Thomazin during the progress of the construction,” etc. The bill alleged that “a verbal contract was entered into by which lumber was to be furnished in such quantity or quality as Frank S. Thomazin might need, etc., and as he might from time to time call for or order during the erection of said buildings, etc., and that Thomazin agreed to pay the usual market price,- or such price as might be agreed on at the time of ordering,” etc.
There is no variance worth noticing in these documents. But it is alleged that the proof varied from both statement and bill, in that it showed an express contract for a certain amount of lumber for a specific price, namely, $533.78, and not, as claimed by statement and bill, a contract for lumber in such quantity as might be needed at such price as' might be agreed on when ordered.
It is true that Prosser, the manager of the company, testified that when Thomazin came to the office of the company first, he said that he had figures from one of the company’s competitors, and that thereupon Prosser agreed with him as to prices,.and an estimate, as Prosser later calls it, and as it is denominated in the paper itself, was made out of prices which Thomazin agreed to pay for different items of lumber. The gross amount of this estimate was $533.78, and it bore a memorandum signifying that two and one-half per cent, was to be deducted from that price. The lumber actually from time to time ordered and furnished did not include items of this estimate amounting to $56.70, and did include lumber which was not mentioned in the estimate to the amount of $136.13. On the basis of the lumber actually furnished, and crediting the amount paid, the Conklin Lumber Company under date of March 14, 1905, presented a bill to Thomazin for $359.03, and he placed upon it a certificate that he ordered from the Conklin Lumber. Company lumber and building materials amounting to three hundred and fifty-nine 00/100 dollars, and that they deliveréd same per his orders, and that it was used in his buildings, etc. There is no evidence to the contrary.
The converse of the contention made by the appellant as to the Donlan claim seems to be made here. It is that the estimate, although unsigned by either party, and not in fact carried out in its entirety, was' an express written contract, and that as it was wrongly described as something else in the statement and bill, it cannot be made the basis of the lien decreed. We agree with the master and the court below that there is no variance which should defeat the lien. Giving the statute a reasonable construction, we see no reason in it why the Conklin Company’s claim should not be allowed under the condition of the pleadings afid proofs.
The decree of the Superior Court is therefore affirmed.
Affirmed.
