{ "id": 2516590, "name": "John McNicholas et al. v. William H. Tinsler et al.; Irving W. Kelley et al. v. Warren Springer; A. Campbell et al. v. Warren Springer", "name_abbreviation": "McNicholas v. Tinsler", "decision_date": "1906-06-14", "docket_number": "Gen. Nos. 12,516, 12,517 and 12,518", "first_page": "381", "last_page": "401", "citations": [ { "type": "official", "cite": "127 Ill. App. 381" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "160 Ill. 563", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3129397 ], "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/ill/160/0563-01" ] }, { "cite": "198 Ill. 48", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 845388 ], "opinion_index": 0, "case_paths": [ "/ill/198/0048-01" ] }, { "cite": "75 Ill. App. 352", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5176028 ], "opinion_index": 0, "case_paths": [ "/ill-app/75/0352-01" ] }, { "cite": "167 Ill. 249", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3090072 ], "opinion_index": 0, "case_paths": [ "/ill/167/0249-01" ] }, { "cite": "26 Ill. 87", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "94 Ill. 266", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2730046 ], "opinion_index": 0, "case_paths": [ "/ill/94/0266-01" ] }, { "cite": "145 Ill. 238", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5486395 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/145/0238-01" ] }, { "cite": "75 Ill. 255", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2700893 ], "opinion_index": 0, "case_paths": [ "/ill/75/0255-01" ] }, { "cite": "199 Ill. 294", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3263633 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/199/0294-01" ] }, { "cite": "101 Ill. App. 178", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "131 Ill. 66", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5417706 ], "opinion_index": 0, "case_paths": [ "/ill/131/0066-01" ] }, { "cite": "128 Ill. 148", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5411966 ], "opinion_index": 0, "case_paths": [ "/ill/128/0148-01" ] }, { "cite": "59 Ill. 223", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5234182 ], "opinion_index": 0, "case_paths": [ "/ill/59/0223-01" ] }, { "cite": "138 Ill. 187", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5445988 ], "opinion_index": 0, "case_paths": [ "/ill/138/0187-01" ] } ], "analysis": { "cardinality": 1257, "char_count": 41813, "ocr_confidence": 0.562, "pagerank": { "raw": 1.5522964274278852e-07, "percentile": 0.6751341487476683 }, "sha256": "548ca3e3811012af115ccd1f6251ec8e109f4063bf1ae0b6f9a1674277584895", "simhash": "1:1dcf0a49146954ae", "word_count": 7235 }, "last_updated": "2023-07-14T19:18:02.092160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John McNicholas et al. v. William H. Tinsler et al. Irving W. Kelley et al. v. Warren Springer. A. Campbell et al. v. Warren Springer." ], "opinions": [ { "text": "Mb. Justice Bbown\ndelivered the opinion of the court.\nThese three cases, having been consolidated, for hearing upon one abstract and set of briefs, will be disposed of in one opinion.\nThey grew out of contracts made in 1895 and 1896 in contemplation of the erection of a large mill construction building, of a value of not less than $150,000, on land belonging to Warren Springer in the city of Chicago.\nThe record in each of the. three cases is made up in accordance with the praeoipe of the respective plaintiffs in error. For convenience we shall in this opinion call the cases respectively the McNicholas case, the Kelley case, and the Campbell case.\nIn the McNioholas case the record contains process on an original bill of complaint in chancer)7 filed by Vincent Bowerman against Warren Springer, A. CampbellandF. H. Campbell, copartners, and DeWitt Hubbard. The process shows service on Springer and F. H. Campbell in June, 18'96. Then there is another writ on Bowerman\u2019s amended bill shown as served on additional defendants Orville Peckham and Harry B. Leib, and a further writ purporting to be issued on a certain bill of complaint of Vincent Bowerman, and shown as served on January 7, 1897, on William H. Tinsler, who is described in the writ as impleaded with J. F. Morris et al. Then follows an \u201cEngrossed Amended Answer in the nature of an Intervening Petition and Cross-Bill of Boswell W. Weld and Daniel T. Donovan, partners doing business as B. W. Weld & Co., and John McNicholas,\u201d filed February 17,1903, and entitled as in the case of \u201cVincent Bowerman v. A. Campbell et al.\u201d and \u201cR. W. Weld et al. v. Wm. H. Tinsler et al.\u201d In said \u201cAnswer and Intervening Petition\u201d are inserted what purport to be copies of various documents alleged to exist:\nFirst. A lease from Warren Springer to William H. Tinsler of certain lots in S. W. Eawson\u2019s subdivision of block 11 in School Section Addition to Chicago, for ninety-nine years from May 1, 1896, for an annual rental varying from $6,000 to $10,000 a year. There is a covenant in the alleged lease that the lessee will erect, finish and complete at his own expense upon the said premises a mill construction building, and have the same ready for occupancy and fully paid for and free from all mechanics\u2019 liens on or before September 1, 1896; the said building to be worth not less than $150,000. The usual provisions concerning forfeiture of the lease if the covenants for the payment of rent are not fulfilled are contained in the lease. This lease purports to have been executed March 21, 1896, and to have been recorded on May 26,1896, in the records of Cook county.\nSecond. An agreement between Warren Springer and William H. Tinsler, bearing date also of March 21, 1896, reciting the alleged lease, and providing, among other things, that Springer should loan Tinsler $10,000 in installments of $1,000 each, as certain portions of the stipulated building are shown to have been completed with liens waived. Tinsler agrees to give Springer for the sums so loaned his promissory notes for each and all of the sums so loaned, to bear interest and to run a year and a half, and to be secured by a mortgage upon the leasehold interest of said Tinsler in said property mentioned in the lease, Springer agreeing to release said mortgage, provided Tinsler places a loan on said leasehold interest, and to accept a second mortgage subject only to a first mortgage for such loan, or to accept an assignment of the lease of said building, at the election of said Springer, to secure the payment of the $10,000 described and any other moneys that may be loaned by said Springer to Tinsler.\nThird. An agreement between Warren Springer and William H. Tinsler, bearing date of April 20, 1896, reciting the execution of the lease and the before described agreement, and providing that the agreement should be amended as follows: In place of the payment of $10,000 by Springer, said Springer agrees to pay one Frank II. Novak as attorney and agent for Tinsler and the contractor, whoever he may be, for the construction of said building, such sums of money as may be necessary to pay for the necessary labor that may be contracted for by Tinsler or his contractor; said sums to be advanced every two weeks as the pay roll is made up; the first sum to be paid after said Tinsler and his contractor have had one pay day and paid the laborers for at least two weeks\u2019 labor on said building; the payments thereafter to be made every two weeks as the work progresses; and it is agreed that Novak shall pay out said sums of money by him received on a pay roll 0. K\u2019d by the contractor and owner and approved by Springer, and upon such payment shall take waivers of liens or receipts for the amounts of moneys by him so paid. And it is agreed that $10,000 of the money so advanced by Springer shall be secured by second mortgage on said leasehold interest as specified in the agreement of March 21, 1896, and the further sums, if any, advanced by Springer over and above said $10,000, shall be evidenced by orders given by the owner to said Springer on the \u201cLoan Company\u201d; that be (the owner) has placed a loan of $100,000 on the premises, and the orders are to be paid by said loan company as follows: One-half out of the first $50,000 paid by said loan company when the roof is on the building, and the balance when the final payment is made and the building finished.\nFourth. A letter from Warren Springer under date of April 21, 1896, agreeing to add $500 to the amounts specified to be loaned \u201c in the contract of March 21, 1896.\u201d\nFifth. A proposition dated April 30, 1896, signed by McNicholas and accepted by indorsement thereon by Wm. H. Tinsler, to complete certain excavating on the premises in question for $1,400; the job to be finished by June 4, 1896, payments to be made every two weeks of seventy-five per cent, of the amount of the then completed work\u2014 balance on completion of the entire excavation.\nSixth. A bond executed by Tinsler and McNicholas to Springer, for $1,000, conditioned that McNicholas should complete the contract for excavating with Tinsler in accordance with its terms and furnish Springer releases of liens for all work done on account of it.\nSeventh. A notice from McNicholas to Tinsler, dated May 29, 1896, that unless Tinsler pays McNicholas in accordance with his contract, McNicholas will discontinue his work under the contract and enforce his lien for the value of what he has done and damages.\nThe said \u201cAnswer and Intervening Petition\u201d contains also what purports to be copies of documents in existence in relation to a certain contract of Eos well W. Weld and Daniel T. Donovan, as follows :\nEighth. A contract dated May 15, 1896, between E. W. Weld & Co. and William H. Tinsler for the carpenter and mason work (except excavation and plastering) for the proposed building before described.\nNinth and tenth. Letters or certificates from one A. D. Lieb to Tinsler, reciting that the latter had'applied for and been awarded a loan of $100,000 on the property before described, the recital of acceptance being of the date of June 4, 1896.\nEleventh and twelfth. Two orders in favor of Weld & Co. One is for $74,300 drawn by Tinsler on Lieb, dated June 4, 1896, and ordering the said money paid 'out of the loan for $100,000 on leasehold of part of lots 33 and 34, etc., $5,000 when the building is erected according to the plans and specifications as far as the contract for carpenter work and mason work is concerned and the roof is on, and $24,300 when the building is entirely completed; this order being accepted by Lieb. The second order is drawn by Tinsler on Warren Springer, ordering the payment of $8,000 \u201cout of the loan of $10,000 made me by you,\u201d in installments of $1,000 as the building progresses, and waivers or releases of mechanics\u2019 liens are produced. This order is accepted by Springer.\nThirteenth. A statement of R. W. Weld & Co. to Tinsler of various bids received by them for material for the building.\nFourteenth. A notice dated June 9, 1896, from R. W. Weld & Co. to Tinsler, that unless Tinsler complies with his contract of May 15, 1896, Weld & Co. will discontinue work and enforce their lien for the value of what they had done and damages.\nFifteenth. A statement dated June 8, 1896, and filed in the office of the clerk of the Circuit Court of Cook County, June 13,1896, to the effect that on May 15, 1896, Tinsler \u201cwith the knowledge, permission and authority of Warren Springer, owner\u201d of the premises heretofore described, made a contract with said Weld & Co. to furnish labor and material for and do the carpenter and mason work (except excavation and plastering) necessary for the completing of a seven-story and basement building to be erected on said real estate; that the amount to be paid therefor was $82,--300; that no definite time was fixed in said contract when the same was to be completed, it being understood, agreed and implied, however, that the same should be completed within a reasonable time, to wit, within a year from the date thereof, and that final payment was to be made on completion of the contract.\nSixteenth. (As Exhibit A to the \u201cEngrossed Amended Answer\u201d.) An amended \u201cStatement\u201d dated October 15, 1901, and filed with the clerk of the Circuit Court of Cook County November 5, 1901, in which the words, \u201cthat no definite time is fixed in said contract when the same is to be completed\u201d were stricken \"out, and it is asserted that the contractors were obligated to complete the work by November 1, 1896.\nSeventeenth. A release by Harry R. Lieb, trustee, dated July 31, 1896, and recorded June 10,1897, of the trust deed of Tinsler and wife to him of the date of March 21, 1396.\n\u201cThe Engrossed Amended Answer in the nature of an Intervening Petition and Cross-Bill\u201d of Weld and Donovan and McNicholas, of which these various documents really form the frame work, contains also averments of fraud on the part of Springer committed, it is alleged, with the purpose of securing the improvement of his land with but trifling cost to him, in pursuance of which design he imposed on Tinsler and on Weld and Donovan and on McNicholas, and procured the execution of several of the documents detailed. It is alleged that Tinsler acted as \u201cthe mask, alias and agent\u201d of Springer in entering into the contracts described, and that the alleged proposed loan to be made by Lieb was a false pretense. It is also alleged that Springer was a real, but undisclosed, principal in the petitioner\u2019s contract with Tinsler; that the petitioner McNicholas has done all the work to be done by him under the contract; that Tinsler and Springer are indebted to him in the sum of $1,400 with interest, and that he is entitled to a mechanic\u2019s lien therefor on said premises. Also that by breach of the contract on the part of Tinsler and Springer the petitioners Weld and Donovan have been damaged to the extent of $36,132, in which amount Tinsler and Springer are indebted to the petitioners Weld and Donovan, and for which amount the petitioners Weld and Donovan are entitled to a mechanic\u2019s lien on the before described premises.\nThe \u201cAnswer and Intervening Petition\u201d then closes with a prayer for judgments and decrees of sale in favor of McNicholas, and of Weld and Donovan, respectively, against Tinsler and Springer and the premises described.\nThe only other matter in the transcript of record in the McNicholas case is the decree which was entered in the chancery cause in the Circuit Court of Cook County, numbered 158,415, and which is entitled as in the causes:-\nThe decree recites that \u201cthe cause\u201d came on to be heard \u201cupon all the petitions and cross-bills, answers and amendments thereof and replications thereto, and upon the master\u2019s report of the testimony taken by him under the order of reference, and upon the depositions, exhibits, objections and stipulations of the several and respective parties returned with said master\u2019s report and the proofs taken in said cause, oral and documentary, and the stipulations and admissions of the solicitors of the several and respective parties in open court in the presence of the chancellor, for the respective parties.\u201d\nThe decree dismisses the original petition and all amendments of Bowerman, finding, \u201cunder the allegations of his amended bill and upon the evidence produced upon the hearing of the cause,\u201d that he had failed as subcontractor to comply with the Mechanic\u2019s Lien Law by filing his petition or commencing his suit in time, and then proceeds: \u201cThe court further finds from the intervening petition of Roswell W. Weld and Daniel T. Donovan as amended on February 17, 1903,\u201d certain things.\nIn effect this finding follows the allegations of the petition above set forth, and asserts that Springer made the lease to Tinsler knowing him to be financially irresponsible and unable to erect the building provided for in it without defrauding the mechanics, material men and laborers; that he conspired with Lieb to falsely represent that a loan had been made on the premises which would be paid to the contractors; that no loan was made and Tinsler was unable to pay for or erect the building provided for; that the contracts set forth in the petition were made between Tinsler and McNicholas and between Tinsler and Weld and Donovan; that McNicholas performed the largest part of the excavation provided for in his contract, but that the building was never erected, because of the failure of Tinsler to provide for the payments set forth in his contract with Weld and Donovan.\nThere is a finding that on May 27, 1898, R. W. Weld & Co. filed \u201cin this cause their intervening petition claiming a mechanic\u2019s lien for the value of what they had done and the profits which would have accrued to them had the said building been erected, and that on February 17, 1903, said intervening petition was amended.\u201d\nAlso that on the 27th day of May, 1898, McNicholas filed an intervening petition in the cause, praying that he might be allowed a lien against said premises for that part of the work performed by him.\nThe following paragraphs of the decree are the disposing part of the same:\n\u201cThe court further finds from the evidence and from the express agreement of the parties to this cause, made in open court, that at no time did the said Roswell W. Weld and Daniel T. Donovan, doing business as R. W. Weld & Company, file a statement of a claim for a lien, as is required by section 7 of the Mechanic\u2019s Lien Law in force at the time said contract of said petitioners was made; and the court, therefore, finds that by reason of the failure of said intervening petitioners to file a statement of a claim for lien they have not brought themselves within the purview of said section 7 of the Revised Statutes, and the court therefore directs that said petition of said Roswell W. Weld and Daniel T. Donovam,, doing business as R. W Weld d\u00e9 Company, and all mnendments thereto be dismissed for want of equity.\u201d\n\u201cThe court further finds that at no time did the said John McNicholas ever file a statement of claim for lien as required by section seven (7) of the Mechanic\u2019s Lien Law in force at the time of the making of the said contract, and that by.reason of said failure on the part of the said John McNicholas to file said statement, said intervening petitioner, John McNicholas, has not brought himself within the purview of said statute, and is not, therefore, entitled to a lien against said premises, and his said petition and all amendments thereto are, therefore, hereby dismissed for want of equity.\u201d\nWe could not, in any event, from this partial and incomplete record find justification in reversing the action of the chancellor in dismissing the bill. The decree recites that in the cause in which it was rendered there were \u201canswers\u201d to the cross-bills and intervening petitions, \u201creplications\u201d, a \u201cmaster\u2019s report of testimony taken by him\u201d, \u201cdepositions\u201d, \u201cexhibits\u201d, \u201cstipulations\u201d, \u201cproofs\u201d, \u201coral and documentary\u201d, and \u201cadmissions\u201d. None of these are in the transcript. They may have furnished, independently of any of the recitals of the decree, sufficient grounds for dismissing the \u201cEngrossed Amended Answer in the nature of an Intervening Petition and Cross-Bill\u201d of Weld, Donovan and John McNicholas.\nThe only ordering parts of the decree which it is sought to reverse in this proceeding are those which dismiss the petitions of Weld and Donovan and McNicholas for want of equity.\nIt is settled that where the decretal order in a chancery suit is not affirmative relief, but the dismissal of the bill for want of equity, the complainant, to secure reversal, must preserve the evidence and show that it justified relief, or else it will be presumed that the chancellor was justified by the want of proof in his disposition of the cause. Atkinson v. The Linden Steel Co. et al., 138 Ill. 187; Thomas v. Adams, 59 Ill. 223. And even were this not so, it furnishes a presumption that there is evidence in the record to sustain the decree that a master\u2019s report of testimony taken is on file. Brown v. Miner et al., 128 Ill. 148; Baird v. Powers, 131 Ill. 66.\nPlaintiffs in error, however, insist that these considerations cannot avail against their contention, because the decree finds certain facts to be according to the allegations of their \u201cAmended Petition\u201d, and by its recitals places the dismissal of that petition on the ground that \u201cat no time did Weld and Donovan or MclNicholas file a statement of claim for lien as required by section seven (7) of the Mechanic\u2019s Lien Law in force at the time of making of the said contract\u201d, and \u201ctherefore\u201d they have not brought themselves within the purview of said statute, and \u201ctherefore\u201d their petitions are dismissed.\nThe decree does, indeed, recite that the court finds certain facts involving Springer in a conspiracy to make certain false representations to Weld and Donovan and McNicholas for the purpose of inducing them to place valuable improvements on his, Springer\u2019s, property. These findings would not, in our opinion, by themselves support any of the affirmative relief asked for by the \u201cAmended Petition\u201d, but this does not need discussion, for it is to be noted that the decree recites that the court finds these things not from the evidence before it, or even from all the pleadings involving the matter detailed in the petition, but altogether \u201cfrom the intervening petition of Eos well W. Weld and Daniel T. Donovan as amended February 17, 1903.\u201d This kind of a finding is strange to us. Even if it covered completely all the allegations of the \u201cAmended Petition\u201d in question, it could not control or make nugatory or erroneous the order dismissing the petition. It would amount only to a recital of the allegations of the petition, not as proved, but as assumed, and an adjudication that nevertheless no case was made out. This would be regular, it seems to us, only if the record showed that the cause was disposed of on a demurrer to the petition, not, as the decree here recites, on answers, replications and proofs. But although irregular, these \u201cfindings\u201d \u201cfrom the petition\u201d do not render the ordering part of the decree erroneous. Counsel for plaintiffs in error says: \u201cThe decree holds that these respective bills were dismissed for the one solitary reason that neither of said parties plaintiff in error had filed a formal claim for lien, and therefore neither had brought himself within the purview of section 7, Act of 1895, their contracts having been made and the work thereunder done while said Act was in force and being governed thereby. This one reason for the court\u2019s ruling is clearly and distinctly set out in the decree, and we beg this court to pass upon that one question as squarely made in the decree. Let these respective plaintiffs in error stand or fall on the very and only ground that the court below decreed the dismissal of their bills.\u201d\nWe do not think that we are at liberty so to act. We must consider this record as it comes to us, and if there appears from it as a whole, irrespective of the reasons given in the recitals of the decree for dismissing the petition, no reason for setting such dismissal aside, we ought not to do it. In other words, the mere reasons given by the court, either in opinion or decree, for its action are not of importance in determining our action. They may be wrong, and the order nevertheless be right. In that case we must affirm it. Lord Alvanley in Ex pcurte The Earl of Ilchester, 7 Yesey Jr. 873, declared it in 1803 to be very \u201cuncommon\u201d to express in a decree the \u201c reasons.\u201d If this is not the case now, the argument and expressed \u201c reasons \u201d in a decree are no more than then the controlling factor in determining the correctness of its ordering portion. In this case, however, if we should comply with the demand of plaintiffs in error and pass on this matter, solely considering the point urged by the plaintiffs in error that under the law of 1895 it was not a condition precedent to securing the relief prayed for in the \u201cMcNicholas petition,\u201d that the claim for a lien in the form prescribed by section 7 of that Act should be filed with the clerk of the Circuit Court of Cook County within four months after the last payment became due and payable, our conclusion must be against that contention, and the same as that of the chancellor who tried the cause.\nThe ingenious argument of the counsel for plaintiffs in\"' error has not convinced us that this court was wrong in Its opinion expressed in Christian v. Allee, 101 Ill. App. 178; or that section 7 of the Act of 1895, taken together, does not require the filing of a lien claim, even \u201c when the sole party defendant in interest is the owner of the land.\u201d We cannot regard as lightly, as does counsel, the implication contained in the later words of section 7\u2014\u201c Such claim for lien may be filed at any time after the contract is made, and, as to the owner, may be amended at any time before trial,\u201d etc.\nIt is true, however, as pointed out by counsel, that the Supreme Court in Kendall v. Fader, 199 Ill. 294, decided that the contract involved in Christian v. Allee was wholly governed by the Act of 1887. We do not cite the latter case as a controlling authority on us, but as showing what then was and still is the opinion of this court on the construction of section 7 in the Act of 1895. But even if the contention of plaintiffs in error in this regard, so far as the owner of the premises on which a lien is sought, who is a direct party to the contract, is concerned, be correct, and against such a party to the contract who is owner no claim for lien need be filed, yet this is not, in our opinion, a case in which this proposition can be invoked to aid the petition.\nWhen the owner of a leasehold makes a contract for an improvement, in which contract the owner of the fee does not join, prima faoie only the leasehold interest of the lessee is rendered primarily subject to a lien. Coleman on Mechanics\u2019 Liens, sec. 62; Judson v. Stephens, 75 Ill. 255; Williams v. Vanderbilt, 145 Ill. 238; Hickox v. Greenwood, 94 Ill. 266.\nThe lessor or owner of the fee having ground rent reserved and means provided in the lease for enforcing the payments by forfeiture of the leasehold interest is, in the sense in which those words are used in section 7, not an \u201c owner,\u201d but at most \u201c a creditor or incumbrancer.\u201d He is c\u00f3rtainly not an owner of the leasehold interest of which he is, however, an \u201c incumbrancer.\u201d\nIt is claimed, however, by plaintiffs in error that in this case, by virtue of the actions and intentions of Springer, he is shown to be the real person in interest in the contract, not a third party of any kind, but the direct contractor, and in the contemplation of the law the \u201c owner.\u201d We have pointed out already the fact that in this record there is no evidence preserved, and also the weakness of the findings of the decree, in that they are said to be made \u201c from the Intervening Petition of Weld and Donovan,\u201d which petition the decree would seem to show was answered.\n\u201c Pleadings cannot constitute evidence on which a decree can be based, unless the allegations are admitted by answer.\u201d Dooley v. Stipp, 26 Ill. 87.\nAnd even as thus made the findings are only that Springer leased the premises for ninety-nine years to Tinsler, knowing Tinsler to be irresponsible, and afterward falsely represented to the petitioners' that a loan of sufficient amount would be made to Tinsler to place valuable improvements on his, Springer\u2019s, property. We doubt whether these would be, even if recited as made from the evidence, sufficient to place Springer entirely in Tinsler\u2019s place as \u201c owner \u201d in the sense of the statute.\nThe decree of the Circuit Court dismissing the McNicln olas petition must be and is affirmed.\nPassing now to those cases which we have heretofore denominated the \u201c Kelley case \u201d and \u201c Campbell case,\u201d which are, although distinct from each other .and from the Mc-Kicholas case, consolidated with that case and with each other for hearing in this court, we are met with a somewhat different situation.\nIn these cases, as in the McJSTicholas case, the transcripts of the records are made according \\,o jprmipe. In each case, however, the transcript contains the matters essential to a proper consideration and disposition of the cause. In each case is given the process in the original bill of Powerman against Springer and others. In the Kelley case is a pleading filed as of January 23, 1903, being \u201cAn Answer in the nature of an Intervening Petition and Cross-Pill,\u201d a general demurrer of Warren Springer thereto, anda decree sustaining the demurrers and dismissing the \u201c petition \u201d for want of equity.\nIn the Campbell case is a pleading filed as of January 23, 1903, denominated \u201c Answer and Cross-Bill of A. Campbell and F. B. Campbell,\u201d etc., a general demurrer of Warren Springer thereto, and a decree sustaining the said demurrer and dismissing the said petition or cross-bill.\nThe Kelley petition sets up that the petitioners Kelley and McMullen were on February 19, 1895, copartners as architects; that on that date and up to the filing of the petition Warren Springer was the owner of certain lots described in Bawson\u2019s subdivision; that on said date one Bartlett and one Roach were owners of a lease for ninety-nine years from the defendant Warren Springer of said lots, in which lease Bartlett and Roach were obligated and authorized by Springer to construct on said lots a large seven-story building, and to employ architects to prepare plans, etc., therefor, and in so doing the said defendants Bartlett and Roach were the agents of Sjpringer; th; t Springer agreed to aid Bartlett and Roach by loaning and advancing $10,000 to them toward paying for the construction of the said building; that on February 19, 1895, Bartlett and Roach made a written contract with Kelley and McMullen to make plans and furnish professional consultation and architect\u2019s superintendence for the construction of the building, within three years from the date of the contract: final payment at the rate of five per cent, upon the cost of the building to be made on the completion of their said work, and in the event that the work was abandoned before completion, the petitioners to be paid $1,500, and the reasonable value of alterations and additions according to the written contract, which is made an exhibit to the petition. The petition also alleges that between February 19, 1895, and March 19, 1895, the petitioners made all the preliminary studies, etc., for the building, furnished professional consultations to Bartlett and Roach and Springer, and examined the existing buildings of Springer under the direction of Springer, to guide in the studies aforesaid. It proceeds: \u201cYour orators aver that the said defendants Bartlett and Roach and Springer became and are yet indebted to your orators on account of the aforesaid services * * * in the sum. of sixteen hundred dollars.\u201d * * * It then alleges that Springer proceeded to have excavation made for said building, but that Bartlett and Boach and Springer thereupon abandoned further work on said building' and failed to pay the petitioners, wherefore the petitioners are \u201c entitled to a reasonable compensation for as much thereof as has been performed in proportion to the price stipulated for the whole of the work.\u201d \u2022\nAlso it alleges that defendant Springer fraudulently induced Bartlett and Boach to make the lease and contract by falsely representing to them that he had secured for them a building loan of an amount sufficient, with the money which he, Springer, would loan to them, to pay for the construction of the building; that Bartlett and Boach, upon ascertaining that this building loan was a pretense, compelled Springer to cancel their said lease, and thereupon Bartlett and Boach and Springer abandoned their contract with the petitioners. Also, that on January 8, 1903, the petitioners filed with the clerk of the Circuit Court of Cook County a claim for lien, by means of all which premises the petitioners have become and are entitled to a mechanic\u2019s lien in accordance with the statute in such cases made and provided.\nThe petition closes with a prayer for an account, for a decree for a lien, and for a sale to enforce the same.\nThe contention of the plaintiffs in error that the demurrer to this intervening petition was improperly sustained, rests upon these grounds:\nFirst. That the petition, leaving out of account the time of filing the claim for lien and the time of beginning the suit, shows a perfect case for a lien against Springer as owner, and against Springer\u2019s interest in the described property, and this, using the word \u201cowner\u201d, as the case of McDermott v. Palmer (11 Barbour, 9), cited by plaintiffs in error, defines it, as the correlative of the word \u201ccontractor,\u201d and meaning the person who- employs the contractor and for whom the work is done under the contraer.\nSecond. That the statute governing the disposition of the cause is \u201c An Act to Revise the Law in relation to Liens,\u201d approved March 25,1874, as amended by an Act approved May 31, 1887.\nThird. That the amended statute thus governing, while providing a time limitation to the filing of a claim for lien which shall be effective against a third party\u2014creditor, incumbrancer or purchaser\u2014makes no such limitation as to the filing of the claim so far as the \u201c owner \u201d is concerned, the requirement as to him being merely that the claim shall be filed at some time (within the time prescribed by the general statute of limitations), and the suit begun within two years thereafter.\nThe defendants in error contend that the second of these propositions is incorrect and that as the question involved is one of remedy rather than of contract, the law govern-, ing the cause is the one in force when the suit was brought, viz: \u201c The Act to Revise the Law in relation to Mechanic\u2019s Liens,\u201d approved June 26, 1895, and not the one in force when the contract was made, that is, the- Act of 1874 as amended in 1887. To this they cite Coleman on Mechanic\u2019s Liens, and various Illinois cases arising and decided before the law of 1895 went into effect, and where consequently the question was between former statutes of different dates. If the defendants in error were right in this contention, it would necessarily justify this decree, for the law of 1895 explicitly provides that the \u201cintervening petition\u201d must be filed within two years after final payment is due, or the lien shall be void as to all parties. In this case the petition was not filed within that time, but several years later.\nWe think, however, that the authority of the cases cited by plaintiffs in error\u2014Andrews & Johnson Co. v. Atwood, 167 Ill. 249; Kendall v. Fader, 199 Ill. 294; Springer v. Bowerman, 75 Ill. App. 352,\u2014is sufficient to establish the proposition contended for by them, that the Act of 1874 as amended in 1887 governs the disposition of this cause.\nBut the first and third grounds of the position taken by the plaintiffs in error, as above indicated, are both as necessary to sustain it as is the second, and with \u2022 neither of them are we in accord.\nWe have already pointed out in discussing the MchTicholas case that prima faoie it is only the lessee and his interest that are primarily liable to the lien provided for by the statute when it is the lessee who makes the contract for the improvement. In that case we indicated the defect of proof and the weakness of the decretal findings to overcome this prima faoie presumption against the liability of Springer as \u201cowner\u201d and his interest as an \u201cowner\u2019s\u201d interest.\nThis Kelley case stands on a different footing, for it is the allegations of the petition only that we have to consider. But these allegations seem to us also insufficient to establish the relation of Springer to the contract, which is relied on by the plaintiffs in error.\nThe allegations of fact amount to this: That Warren Springer was in February, 18U5, the owner of the fee of certain lots; that at that time Bartlett and Roach were the owners of a lease for ninety nine years thereof; that by the terms of said lease Bartlett and Roach were \u2018\u25a0\u2018\u25a0obligated and authorized'1'1 by Springer to construct a large building thereon, and to employ architects; that Springer agreed to loan Bartlett and Roach $10,000 towards the construction of the building; that Bartlett and Roach made a contract with the petitioners in connection with said proposed construction; that Springer induced Bartlett and Roach to make the lease in question by representing to them that he had secured a building loan for them, and that upon said loan failing, Bartlett and Roach ard Springer cancelled the lease.\nThe allegations interspersed with these statements of fact, that in making the contract and employing the architects, Bartlett and Roach \u201c were the agents\u201d and acting as the agents of Springer, that Springer \u201c became indebted to the petitioners for their services,\u201d that Springer \u201c abandoned work on the land,\u201d that Springer \u201cfraudulently induced \u201d the making of the lease by misrepresentation as to a building loan, are manifestly conclusions of the pleader and conclusions of law at that.\nWe do not feel satisfied that the allegations of fact are sufficient to place Springer in the position of the direct contractor with Bartlett and Roach, the \u201c owner,\u201d that is, who employed Bartlett and Roach, and \u201c for whom the work is done under the contract.\u201d McDermott v. Palmer, supra.\nThe plaintiffs in error rely on Williams v. Vanderbilt, 145 Ill. 238, and Crandall v. Sorg, 198 Ill. 48, as establishing their contention. These cases, and especially the last, certainly go far towards justifying in this regard the language of the argument of counsel, that Springer, under the allegations of the petition, must be considered an owner in precisely the same sense as Bartlett and Roach were owners; and yet, we think, there is a distinction to be made which the length of this opinion forbids us to elaborate. These cases decide that, under like circumstances as those involved here, the owner of the fee cannot escape altogether; under cover of having made such a lease as the one in question, the enforcement of a lien on his interest; rather than that in the matter of notice and procedure to enforce that lien, he is to be treated as \u201cowner\u201d rather than \u201cincumbrancer.\u201d\nIf Springer were not the \u201cowner\u201d in the sense of being distinguished thus from all third parties whose interest was less primarily liable, it must be conceded that the demurrer was properly sustained to the Kelley petition, for it is not contended that the Act of 1874, as amended in 1887, does not require as to all persons other than such an owner the filing of a claim for lien within four months after the last payment shall have become due and payable.\nBut, even if Springer were to be considered the owner in the highly particular sense involved, as plaintiffs in error contend that he should be, we are not prepared to accede to the proposition, vigorously urged by counsel, that as to him and his interest any day within ten years from the date on which a cause of action accrued under the contract was early enough to file the requisite lien claim with the clerk of the Circuit Court, and thereupon bring suit.\nWe have fully and carefully considered this position and thoroughly apprehend the forceful argument of counsel and the distinctions that he is enabled to make between the cases cited by opposing counsel and the one at bar, but we are not convinced that the intention of the legislature, as expressed in the Act, does not import the time limit provided in section 28 (as amended in 1887) into section 4 (as then amended).\nIt seems to us the whole purpose of the amending Act of May 31, 1887, was to shorten and limit the time within which the claim for a secret lien should be published and enforced.\nThe additional section 52, which provides for a method by which suit may be summarily hastened by the owner after a claim has been filed, is hardly consistent with the theory of the plaintiffs in error that it was intended that the claim for a lien might be kept hanging secretly over the owner\u2019s interest for ten years.\nMoreover, it is by no means clear that independently of all other questions and of the length of time prescribed in the Statute of Limitations, laches sufficient to defeat this action should not be imputed to one who delayed from 1895 to 1903 the filing of his \u201cintervening petition\u201d to enforce a lien according to the practice of chancery.\nFatal laches is frequently found in a delay less than the time required for the bar of a Statute of Limitations, and objection on the ground of-laches to relief prayed for- may be considered on demurrer. Kerfoot v. Billings, 160 Ill. 563, 573.\n\u2022 The order sustaining the demurrer to the petition of Kelley et al. and dismissing the petition is affirmed.\nIn the \u201cCampbell case\u201d, i. e. the \u201cAnswer and Cross-Bill of A. Campbell and F. H. Campbell, partners doing business as A. Campbell Building Company,\u201d there is nothing so different from the Kelley case as to call for a separate discussion of it.\nThe allegations of Springer\u2019s direct responsibility for Ihe contract and his direct relations to the contractors are varied somewhat and perhaps stronger, but even leaving the questions arising from these allegations out of the account, we are compelled, for the other reasons set forth in the preceding discussion of the Kelley case, to the conclusion that the demurrer to the \u201cAnswer and Cross-Bill\u201d of Campbell et al. was properly sustained. The decree is therefore affirmed.\nMcNicholas et al. v. Tinsler et al., affirmed.\nKelley et al. v. Springer, affirmed.\nCampbell et al. v. Springer, affirmed.", "type": "majority", "author": "Mb. Justice Bbown" } ], "attorneys": [ "J. A. Coleman, for plaintiffs in error; Edwabd Maheb, of counsel.", "Douglas C. Gregg, for defendants in error." ], "corrections": "", "head_matter": "John McNicholas et al. v. William H. Tinsler et al. Irving W. Kelley et al. v. Warren Springer. A. Campbell et al. v. Warren Springer.\nGen. Nos. 12,516, 12,517 and 12,518. Consolidated for Hearing.\n1. Transcript of record\u2014 effect of, where prepared as per prceeipe. Where the transcript of the record has been made up by the clerk as per praecipe filed with him, the court, in considering whether the decree appealed from should be reversed, will consider what might have been the effect if the documents and orders omitted were contained in such transcript, and if the omitted documents and orders might have justified the decree iu question, a reversal will not be ordered.\n2. Transcript of record\u2014effect of omission of master's report. Where it appears by the transcript filed on review that a master\u2019s report of testimony taken is on file in the lower court and is not reproduced iu such transcript, it will be presumed that such report contained evidence which justified the decree of dismissal for want of equity, sought to be reversed.\n3. Dismissal for want of equity\u2014when order of, will not be reversed. Where a decretal order in a chancery suit does not constitute affirmative relief, but is a dismissal of the bill for want of equity, the complainant, to secure a reversal, must preserve the evidence and show that it justified the relief prayed, else it will be presumed that the chancellor was justified, by the want of proof, in his disposition of the cause.\n4. Reversal\u2014what not sufficient to justify. The expression of wrong reasons will not justify a reversal; if the decree sought to be set aside is in its conclusions correct, the reasons given therefor will be disregarded.\n5. Mechanic\u2019s lien\u2014claim essential under act of 1895. The filing of a claim for lien within four months after the last payment became due and payable, is essential to the enforcement of a mechanic\u2019s lien under the act of 1895, even when the sole party defendant in interest is the owner of the land sought to be charged with the lien.\n6. Mechanic\u2019s lien\u2014what act governs enforcement of claim. The act in force at the time the contract in question in the case was made, is the law which governs the enforcement of the right.\n7. Mechanic\u2019s lien\u2014when petition insufficient. Held, in this case, that the particular allegations of the petition were not sufficient to justify the conclusion, when such petition was tested by demurrer, that the defendant named therein was the owner of the property sought to be charged.\n8. Laches\u2014how question of, may be raised. The question of laches may be considered by the court upon determining whether a demurrer should be sustained.\nMechanic\u2019s lien proceeding. Error to the Circuit Court of Cook County; the Hon. Edwabd F. Dunne, Judge, presiding. Heard in this court at the October term, 1905.\nAffirmed.\nOpinion filed June 14, 1906.\nJ. A. Coleman, for plaintiffs in error; Edwabd Maheb, of counsel.\nDouglas C. Gregg, for defendants in error." }, "file_name": "0381-01", "first_page_order": 399, "last_page_order": 419 }