#### Bichard Hansen, Appellant, v. Peter J.. Muldoon and Harry II. Quinn, Appellees.

Gen. No. 6,522.

(Not to be reported in full.)

Abstract of the Hecision.

1. Appeal and error, § 1165 * —when court will look into whole record. In determining, on appeal, the question whether a subcontractor is entitled to a lien, the court will look into the whole record presented.

2. Mechanics’ liens, § 113*—what are rights of subcontractor as to lien on' funds due contractor completing work under new agreement with owner. Where a building contractor abandons the contract, but completes the building under an arrangement with the owner, the latter has the right to use any money that remains *514in his hands, which would have been due and payable to the contractor had he completed the contract, for the purpose of finishing the job, and a subcontractor under the original contract can only acquire a lien to reach, the balance that remains in the hands of the owner after paying what is necessary to expend in completing the job according to the contract.

*513Appeal from the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding.

Heard in this court at the October term, 1917.

Affirmed.

Opinion filed April 9, 1918.

Rehearing denied May 14, 1918.

Statement of the Case.

Bill by Bichard Hansen, complainant, against Peter J. Muldoon, as Catholic Bishop of Bockford, and Harry M. Quinn, defendants, to establish a mechanic’s lien as subcontractor on a building owned by Peter Muldoon, as Catholic Bishop of Bockford, and constructed by said Quinn as contractor. Prom a decree dismissing the hill for want of equity, complainant appeals.

Atwood, Pease & Loucks, for appellant.

David B. Joslyn and Edward D. Shurtleff, for appellees.

*

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 number.

Mr. Justice Niehaus

delivered the opinion of the court.

*5143. Mechanics’ liens, § 113*—when subcontractor entitled to Tien after abandonment of contract. Where the original contractor abandons his contract and fails to carry it out, it is necessary to prove that the owner was indebted to the original contractor, under the contract, before a lien can be enforced against the owner for the benefit of a subcontractor.

4. Mechanics’ liens, § 196*—when not shown that owner indebted to contractor at time of service of notice of lien by subcontractor. On a bill by a subcontractor against the contractor and the owner to establish a mechanic’s lien ■ for work, labor and material furnished before abandonment of the contract by the contractor, evidence held insufficient to show that at the time of service of notice of a lien there was money due the contractor from the owner.

On Petition fob Reheabing.

Equity, § 479 * —denial of relief not based upon pleadings. A subcontractor seeking to establish a mechanic’s lien, in a suit against the owner and contractor, cannot have relief upon grounds not stated in his pleadings.