#### Peter J. Verhoeven for use of Clarence Verhoeven, Assignee, Appellee, v. J. Otto Ingebrutsen and Anna Ingebrutsen, Appellants.

Glen. No. 22,751.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed April 16, 1917.

Statement of the Case.

Bill by Peter J. Verhoeven, for use of Clarence Verhoeven, assignee, complainant, against J. Otto Ingebrutsen and Anna Ingebrutsen, defendants, to enforce a subcontractor’s lien under the Mechanics’ Lien Act. From a decree for the complainant for the sum of $485, defendants appeal.

John B. Fruechtl, for appellants.

Cooney & Verhoeven, for appellee.

*318Abstract of the Decision.

1. Appeal and ebrob, § 410*—when objection as to defect of parties is too late. Where a petition by a subcontractor to establish a lien under the Mechanics’ Liens Act and the summons issued thereon made the original contractor a defendant with the owner of the building on which the lien was sought to be established, but no service was had on the original contractor and the suit proceeded to decree against the owner alone, a complaint that the original contractor should have been made a party to the proceeding, held to be too late when first made on appeal.

2. Mechanics’ liens—when owner charged with notice of right of subcontractors to enforce payment of contracts out of building. The owner of a building is bound by law with notice of the existence under the Mechanics’ Liens Law of the fact that subcontractors would, within the specified legal time, have the right to enforce payment of their contracts with the original contractor from such owner out of such building.

3. Mechanics’ liens, § 196*—when need not be shown that owner owed original contractor. It is not necessary, in a suit to enforce a subcontractor’s lien under the Mechanics’ Liens Act, to show that the owner owed the original contractor at the time the subcontractor served a lien notice on the owner.

4. Mechanics’ liens, § 196*—when evidence sufficient to show petition to enforce is filed in apt time. Evidence held to show that a petition to enforce a subcontractor’s lien under the Mechanics’ Liens Act was filed in apt time after completion of the work.

5. Mechanics’ liens, § 196 * —when evidence is sufficient to show that owners did not make premature payment. Evidence held sufficient to show that the owners of a building did not pay the sum due under their contract before the work required by it was in fact completed; in a suit to enforce a subcontractor’s lien under the Mechanics’ Liens Act.

6. Mechanics’ liens, § 19 6t—when evidence is sufficient to show waiver by owners of time of completion of .work. Evidence held sufficient to show that the owners of a building waived their right to insist on a provision of their contract with. original contractor for completion of the work by a certain date specified therein, in a suit by a subcontractor to establish his lien under the Mechanics’ Liens Act.

*

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

Mr. Justice Dever

delivered the opinion of the court.