#### Chicago & Riverdale Lumber Company, Defendant in Error, v. Edward P. Quinliven, Plaintiff in Error.

Gen. No. 22,550.

(Not to be reported in full.)

Abstract of the Decision.

1. Mechanics’ liens, § 73 * —when payment by owner to contractor is in fraud of subcontractor’s claim. In an action under section 28 of the Mechanic’s Lien Law (J. & A. ¶ 7166), against the owner of a building and a contractor for work and materials *167in remodeling the building to recover the. price of materials sold to such contractor, where the owner, after notice of the plaintiff’s claim, paid the contractor, within ten days after the plaintiff had delivered the materials to him, the full amount due the contractor under their contract without deducting the price of such materials due the plaintiff, and without taking a contractor’s statement under the statute, held that such payment was in fraud of the plaintiff’s claim.

*166Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed February 19, 1917.

Statement of the Case.

Action by Chicago & Riverdale Lumber Company, a corporation, plaintiff, against Edward P. Quinliven et al., defendants, under section 28 of the Mechanic’s Lien Law (J. & A. ([ 7166), to recover the price of lumber sold to a general contractor to be used in remodeling the defendant Quinliven’s house under a contract between him and said contractor, who were sued jointly in said action. From a judgment for plaintiff for $370.07 upon a directed verdict, defendant Quin-liven, by order of severance, alone brings error.

Timothy J. Fell, for plaintiff in error; Herman P. Haase, of counsel.

Archibald Cattell, for defendant in error; Carl A. Waldron, of counsel.

*

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

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section numb'er.

Mr. Presiding Justice McSurely

delivered the opinion of the court.

*1672. Mechanics’ liens, § 73 * —when subcontractor is not estopped to sue owner and contractor. A subcontractor is not estopped to sue the owner of a building and a contractor having a contract for the remodeling thereof by the conduct of his agent where the owner, after notice of the subcontractor’s claim, pays the contractor within ten days after delivery of materials to him, without deducting the subcontractor’s claim, although an agent of the subcontractor had previously told the owner to make such payment to the contractor and notify him, which the owner had done.