delivered the opinion of the court:
This аppeal arises out of a decision by the circuit court of Peoria County granting defendant American Indemnity Company’s motion to dismiss under section 48(1) (i) of the Illinois Civil Practice Act. The plaintiff, William Aupperle & Sons, Inc., argues before this court that the circuit court erred in allowing the motiоn to dismiss and further seeks relief by way of reversal.
On July 17, 1969, plaintiff entered into a written subcontract with Clyde Construction Company (hereinafter called Clyde) to furnish labor and materials for a four-apartment building complex in Peoria, Illinois, known as Royal Oaks Apartments. Clyde was the general contrаctor for the Royal Oaks complex and by the terms of the original subcontract the plaintiff was to be paid *32,000 with work to be completed by Nоvember 1,1969. According to the allegations in plaintiff’s complaint, after plaintiff had begun furnishing labor and material he was requested to undertake сertain work which was not covered by the original subcontract. This contract oversight was called to the attention of Daniel Comm, the developer, architect and agent for the owners. Based upon an October 7, 1969, letter from Mr. Comm, plaintiff agreed to continue the job on a labor and materials basis and to perform in accordance with the direction of Wally Howe, the superintendent for Clyde. With the filing of this complaint plaintiff alleges that because of work and materials furnished to the Royal Oaks complex it was owed a total of *63,305.54, of which *29,820 has been paid, leaving a balance of *33,485.54.
Plaintiff previously sought to collect the aforementioned balance in an action to foreclose a mechanic’s lien. That action, like the instant case, resulted in an appeal to this court. (William Aupperle & Sons, Inc. v. American National Bank & Trust Co. (1975),
Ten days following our disposition of the mechanic’s lien foreclosure action plaintiff brought the instant action against the defendant. Defendant issued а surety bond under which payment for labor and materials in connection with the construction of the Royal Oaks complex was guaranteed. The bonds were executed with Clyde and with American National Bank and Trust Company of Chicago, as trustee, under Trust No. 45645. Defendant’s obligation under the bond was to:
° ° promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for usе in the performance of the contract * *
The defendant’s surety responded to plaintiff’s complaint with a motion to dismiss under section 48(1) (i) of the Civil Practice Act on the ground that plaintiff had impaired its alleged subrogation rights by giving a general release of its mechanic’s lien right. The circuit court allowed this motion and denied a motion by plaintiff to vacate that order. This appeal followed.
The effect of the waiver and release of plaintiff’s right to a mechanic’s lien was to deny the surety the ability to assert its rights of subrogation by way of foreclosure. The law is well settled in Illinois, as elsewhere, that a subrogee (here the defendant) can have no greater right than the subrogor (here the plaintiff) and can еnforce only such rights as a subrogor could enforce. (McCormick v. Zander Reum Co. (1962),
We agree with the defendant that the facts of this case closely parallel the facts from another case decided by this court in 1965. In Board of Education v. Hartford Accident & Indemnity Co. (1965),
“By extinguishing this right [of subrogatiоn] through the delivery of * * * waivers certifying payment 5 ° plaintiff is estopped by its own conduct, pro tanto, from recovering against [the surety].”
We beliеve the rule announced by Justice Coryn, who followed the policies established by our supreme court in Alexander Lumber Co. v. Aetna Accident & Liability Co. (1921),
Plaintiff’s conduct cannot be excused by alleging ignorance of the surety bond until after the execution of the lien waivers. As a practical matter, it works a dubious injury on plaintiff to deny it recovery from a fund which it did not know existed and which without the knowing protection of it willingly prоceeded. As a legal matter, where plaintiff holds itself out as a subcontractor on a project of this magnitude, it is not unprecedentеd to attribute to it certain skills and knowledge of the practices of its trade. (Ill. Rev. Stat. 1977, ch. 26, par. 2—104.) In this case, to attribute to plaintiff the knowledge as to the legal effect of lien waivers, both with regard to the foreclosure of the mechanic’s lien and with regard to the possibility of recovery on a surety bond, results in no injustice.
In its brief plaintiff argues that an insurer who pays a loss to its policyholder, fails to give notice of its subrogation rights to the wrongdoer, and then obtains a general release from the policyholder, cannot assert its alleged subrogation rights against the wrоngdoer. In support of that contention plaintiff cites Employers Mutual Liability Insurance Co. v. American Protection Industries (Colo. App. 1975),
Finally, plaintiff asserts that subrogation is an equitable doctrine and should not be enforced under the facts of the case sub judice because it would be inequitable to do sо. Where the plaintiff has released any and all claims which it may have for labor or materials (William Aupperle & Sons, Inc. v. American National Bank and Trust Co. (1975),
For the reasons set forth above we affirm the decision of the circuit court of Peoria County to the extent that plaintiff has previously waived and released its lien rights. Inasmuch as we have previously determined that plaintiff has not waived its lien for *1,657 (William Aupperle & Sons, Inc. v. American National Bank & Trust Co.), we reverse the order of the circuit court to the extent that it precludes recovery for that amount and remand the cause for further consideration not inconsistent with the views expressed herein.
Affirmed in part; reversed in part; remanded.
STOUDER, P. J., and BARRY, J., concur.