#### Edward Meisel, Defendant in Error, v. William Kalms, Plaintiff in Error.

Gen. No. 22,617.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John A. Mahoney. Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed January 22, 1917.

Statement of the Case.

Action by Edward Meisel, plaintiff, against William Kalms, defendant, based upon an architect’s certificate for $350 for balance due under a building contract between plaintiff, contractor and defendant, owner of the building upon which the work under the contract was done. From a judgment, upon trial before the court, for the plaintiff for the amount of the certificate, defendant brings error.

*298Abstract of the Decision.

Building and construction contracts, § 40 * —when owner mail not retain money under contract to pay liens. Where a building contract provided that the owner might retain out of any money due the contractor an amount sufficient to indemnify him against any lien or claim chargeable to the contractor for which, if established, the owner might be liable, and there was a subcontractor’s lien filed but no" suit was brought thereon, held in an action by the contractor against the owner for the balance due under the contract brought more than four months after the time final payment was due the subcontractor, and wifhin which period a petition to enforce such lien should have been filed, that the subcontractor’s lien filed constituted no defense to such action.

Samuels & Samuels, for plaintiff in error.

Emil A. Meyer, for defendant in error.

*

See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Holdom

delivered the opinion of the court.