{
  "id": 5407658,
  "name": "Henry Marble Company, Appellee, v. William T. Church, Trustee, Appellant",
  "name_abbreviation": "Henry Marble Co. v. Church",
  "decision_date": "1917-04-10",
  "docket_number": "Gen. No. 22,321",
  "first_page": "249",
  "last_page": "253",
  "citations": [
    {
      "type": "official",
      "cite": "205 Ill. App. 249"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "251 Ill. 135",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        3434034
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/251/0135-01"
      ]
    }
  ],
  "analysis": {
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    "char_count": 9465,
    "ocr_confidence": 0.547,
    "pagerank": {
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    "simhash": "1:9a592fd408ac856a",
    "word_count": 1586
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  "last_updated": "2023-07-14T17:46:37.056812+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Henry Marble Company, Appellee, v. William T. Church, Trustee, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Barnes\ndelivered the opinion of the court.\nIn 1912, and up to the date of this proceeding to enforce a mechanic\u2019s lien, appellant owned the fee to a certain Lot 2, and one Mayer a 99-year leasehold to the adjoining Lot 1. Both lots were improved with buildings. On their division line was a party wall, the agreement for which was recognized as in full force and effect. Mayer, desiring to demolish the building on his lot and to erect another in its place and having in mind his duty under the party-wall agreement (as found by the master) to support said party wall and repair any damage necessarily occasioned to appellant\u2019s premises in carrying out his plans of construction, entered into a contract with the Falkenau Construction Company for the foundation and masonry work of his building, which provided for excavations below the party wall, and that the Falkenau Company should protect appellant\u2019s building from all damages and injury during the erection of Mayer\u2019s building and should \u201cfurnish and replace materials, etc., which in any way might become injured or damaged by reason of th\u00e9 work under said building contract.\u201d The specifications for Mayer\u2019s new building provided for such restoration and constituted a part of Mayer\u2019s contract with said Falkenau Company. By way of assurance Mayer showed appellant such provision in the specifications and verbally promised \u2014what he was in duty bound to do under the party-wall agreement\u2014to repair any damage that might be incurred to appellant\u2019s building. The Falkenau Company proceeded with its work shortly after entering into said contract. To do necessary underpinning and shoring of the party wall the Falkenau Company\u2019s workmen entered appellant\u2019s building and took out the marble tile floor from part of its basement, which appellee, pursuant to its contract with the Falkenau Company, subsequently restored. For furnishing said work and material it seeks to enforce a mechanic\u2019s lien on appellant\u2019s lot and building.\nShortly after the completion of the foundation work, appellant demanded of Mayer the restoration of his premises to their original condition. Thereupon Mr. Falkenau of the Falkenau Company called up appellant by telephone and asked if he would consent to a change of material for the floor. Appellant refused his consent insisting on restoration of the basement floor to its original condition, and accordingly it was relaid with marble tiling by appellee pursuant to its contract with the Falkenau Company. For the cost of such work and the interest thereon a decree was entered for a mechanic\u2019s lien on the land and improvements of appellant. In the view we take of the case it is immaterial whether appellant knew that the Falkenau Company had sublet that work to appellee.\nThe master in chancery to whom the case was referred for his conclusions of fact found the facts substantially as above stated, but they do not support appellee\u2019s claim to a mechanic\u2019s lien, which is predicated entirely on the theory that appellee was a contractor as defined! by section 1 of the Mechanics \u2019 Liens Act of 1903, then in force, which reads as follows:\n\u201cAny person who shall by any contract * * * with the owner of a lot * * * or with one whom such owner has authorized or knowingly permitted to contract for the improvement of or to improve the same, furnish material * * * for the purpose of repairing any * * * building * * * shall be known under this act as a contractor.\u201d\n(Hurd\u2019s Rev. St. 1911, p. 1477, J. & A. fl 7139.)\nThe findings of the master and the record clearly ' show that the labor and material furnished by appellee were furnished pursuant to its contract with the Falkenau Construction Company. If under the terms of said section, therefore, any one held the relation of contractor to appellant as owner, it was either Mayer or the Falkenau. Company, the former on the theory that he furnished the material and work by contract with appellant as owner, and the latter on the theory that it furnished the material and work under a contract with Mayer for the improvement and that appellant as owner authorized or permitted Mayer to enter into such contract with the Falkenau Company. But under neither theory nor the above state of facts does appellee occupy the position of contractor as defined by the statute and therefore it could not enforce a lien as such, because appellant neither made a contract with the Falkenau Company nor authorized it to make one with appellee. On the contrary, it clearly appears that appellee was a subcontractor, as defined in section 21 of said Act, which reads:\n\u201cEvery mechanic, workman or other\u2019 person who shall furnish, any materials, * * * or furnish or perform services or labor for the contractor shall be known under this act as a subcontractor.\u201d\n(Hurd\u2019s Rev. St. 1911, p. 1483, J. & A. 7159.)\nNo attempt was made by averment or proof to bring appellee within the provisions of the statute giving a lien to a subcontractor. It is needless, therefore, to discuss whether appellee had any right to a lien as such. The theory on which the bill was brought was not supported by the proof or findings of the master and court, and hence it should have been dismissed for want of equity.\nBut even if appellee were entitled to a lien as subcontractor, it cannot be enforced, in our opinion, because of provisions in the contract with the Falkenau Company whereby the latter, in effect, waived its right to any lien for work done on appellant\u2019s premises. It expressly agreed to protect appellant\u2019s building from all damages and replace materials in any way injured or damaged by reason of its work, the cost whereof was to be included in the price for Mayer\u2019s building. If the contractor waives his lien the subcontractor cannot enforce one. Kelly v. Johnson, 251 Ill. 135.\nAnd upon the said state of facts it is questionable in view of Mayer\u2019s obligation under the party-wall \u25a0agreement to make good the damages so sustained by appellant, and of the fact that the restoration was inade pursuant thereto and not pursuant to a new contract with appellant, whether even the Falkenau Construction Company could, as against appellant, be deemed a contractor under section 1 of said Act (J. & A. ff 7139).\nThe decree will be reversed with directions to dismiss the bill for Want of equity.\nReversed with directions.",
        "type": "majority",
        "author": "Mr. Presiding Justice Barnes"
      }
    ],
    "attorneys": [
      "Church, Shepard & Day, for appellant; Howard W. Lewis, of counsel.",
      "Otto W. Jurgens, for appellee; George H. Mason, of counsel."
    ],
    "corrections": "",
    "head_matter": "Henry Marble Company, Appellee, v. William T. Church, Trustee, Appellant.\nGen. No. 22,321.\n1. Mechanics\u2019 liens, \u00a7 57 \u2014who is not contractor. In mechanic\u2019s lien proceedings, where the complainant sought to enforce a lien as contractor for the work of replacing certain marble tiling in a building of the defendant, and it appeared that a party wall existed between such building and the one adjoining, and that the holder of a 99-year leasehold of such adjoining premises made a contract with a construction company for the demolishing of the building adjoining that of the defendant, and for the foundation and masonry work of a new one, such contract providing for excavations under the party wall, the protection of the defendant\u2019s building and the furnishing and replacing of materials which might become injured in the doing of the work, and such construction company employed complainant to do such replacing work, held that complainant did not sustain the relation of contractor to the defendant, under the terms of section 1 of the Mechanics\u2019 Liens Act of 1903 (Hurd\u2019s Rev. St. 1911, p. 1477, J. &' A. If 7139), in force at the time in question.\n2. Mechanics\u2019 liens, \u00a7 59*\u2014who is subcontractor. In mechanic\u2019s lien proceedings, where the complainant sought to enforce a lien as contractor for the work of replacing certain marble tiling in a building of the defendant, where it appeared that a party wall existed between such building and the one adjoining, and that the holder of a 99-year leasehold of such adjoining premises made a contract with a construction company for the demolishing of the building adjoining that of the defendant, and for the foundation and masonry work of a new building, such contract providing for excavation under the party wall, the protection of the defendant\u2019s building and the furnishing and replacing of materials which might become injured in the doing of the work, and the construction company made a contract with complainant to do such replacing work, held that the complainant was not a contractor under section 1 of the Mechanics\u2019 Liens Act of 1903 (J. & A. If 7139), but was a subcontractor as defined in section 21 of said Act (J. & A. If 7159), and that, as no attempt was made by averment or proof to bring complainant within the provisions of said section 21, it was needless to discuss whether he had any right to a lien a,s a subcontractor.\n3. Mechanics\u2019 liens, \u00a7 61 \u2014what is effect of waiver of lien hy contractor. A mechanic\u2019s lien cannot be enforced by a subcontractor where the contractor has waived his lien.\nAppeal from the Superior Court of Cook county; the Hon. Charles' M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.\nReversed with directions.\nOpinion filed April 10, 1917.\nChurch, Shepard & Day, for appellant; Howard W. Lewis, of counsel.\nOtto W. Jurgens, for appellee; George H. Mason, of counsel.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.\nSee Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0249-01",
  "first_page_order": 277,
  "last_page_order": 281
}