{ "id": 5812239, "name": "D. A. Matot, Appellee, v. Frederick R. Barnheisel and Mrs. Frederick R. Barnheisel, Appellants", "name_abbreviation": "Matot v. Barnheisel", "decision_date": "1918-11-11", "docket_number": "Gen. No. 24,318", "first_page": "489", "last_page": "497", "citations": [ { "type": "official", "cite": "212 Ill. App. 489" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "175 Ill. App. 537", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2751468 ], "opinion_index": 0, "case_paths": [ "/ill-app/175/0537-01" ] }, { "cite": "120 Ill. App. 23", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5305952 ], "opinion_index": 0, "case_paths": [ "/ill-app/120/0023-01" ] }, { "cite": "201 Ill. 552", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5594321 ], "opinion_index": 0, "case_paths": [ "/ill/201/0552-01" ] }, { "cite": "182 Ill. App. 548", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2827522 ], "opinion_index": 0, "case_paths": [ "/ill-app/182/0548-01" ] }, { "cite": "284 Ill. 114", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4919129 ], "opinion_index": 0, "case_paths": [ "/ill/284/0114-01" ] }, { "cite": "144 Ill. App. 329", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2670061 ], "opinion_index": 0, "case_paths": [ "/ill-app/144/0329-01" ] }, { "cite": "126 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5404687 ], "opinion_index": 0, "case_paths": [ "/ill/126/0072-01" ] }, { "cite": "233 Ill. 79", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3378485 ], "opinion_index": 0, "case_paths": [ "/ill/233/0079-01" ] } ], "analysis": { "cardinality": 656, "char_count": 16140, "ocr_confidence": 0.532, "pagerank": { "raw": 9.442044058037034e-08, "percentile": 0.5170067830209406 }, "sha256": "ccfd8a13792ebe16ee02157fe54a61ae3822a4cf741c30ac6475923c0c464564", "simhash": "1:4c53281f0978fcfc", "word_count": 2759 }, "last_updated": "2023-07-14T15:34:34.102394+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "D. A. Matot, Appellee, v. Frederick R. Barnheisel and Mrs. Frederick R. Barnheisel, Appellants." ], "opinions": [ { "text": "Mr. Justice Holdom\ndelivered the opinion of the court.\nThe motion of appellants to strike the cross errors assigned by appellee from the record, reserved to the hearing, is denied.\nThere has been a most flagrant violation of rule 18 of this court in the manner of the preparation of the abstract. The rule says that the party bringing a cause to this court \u201cshall furnish a complete abstract or abridgment of the record. \u2019 \u2019 The document called an abstract is far from complying with this rule. The bill, the answer of Ebert in the nature of a bill of inter-pleader, the answer of appellants, the replication thereto, the master\u2019s report and master\u2019s certificate of services, etc., the exhibits to the master\u2019s report, the objections to the master\u2019s report, twenty-six in number, and the decree, are all set forth in hcec verba, including the formal parts, even to the signatures and official designations of the master to his report and of the judge to the draft of the decree.\nThese infractions of the rule are inexcusable, the penalty for which would justify the abstract being ordered stricken from the files, followed by a pro forma affirmance of the decree. Counsel should understand that they cannot violate the rules of the court in this way with impunity, and furthermore that the court\u2019s refraining in this instance from so striking the abstract must not be taken as a precedent sanctioning such violation of the rule.\nThis is a proceeding to enforce a mechanic\u2019s lien upon certain premises in Chicago of which appellant Frederick R. Barnheisel is the lessee for a term of 99 years. Notice of the lien claim was filed by both appellee and Ebert, as required by statute, October 28, 1914, and January 19, 1915, this proceeding was instituted.\nBarnheisel made a sublease to Watson & Baschelli of the first floor of the premises for a term of 10 years, and while Barnheisel disclaimed having possession of the lease when it was called for as evidence, yet he admitted its existence and that the reserved rental was $1,000 a month. Under the circumstances we t.biuk this was sufficient prima facie evidence of the existence of this sublease. Furthermore it is not disputed that the premises were sublet to Watson & Baschelli in which to conduct a saloon and restaurant. To so convert the premises required the repartitioning, painting and papering of the rooms, the installation of a new store front, windows, transoms, lavatories and other plumbing and the building of an addition in the rear for use as a kitchen.\nThe sublessees, Watson & Baschelli, accepted verbally three estimates made by appellee Matot, the first of which was for the sum of $1,272, plus $8 per foot for extra partitions, and covering the partitioning of the space, new store front and incidental work. The second estimate covered the installation of urinals, lavatory and plumbing, and of new windows, and was for the sum of $711. The third estimate covered the construction of a complete permanent brick addition in the rear at a price of $1,210.\nTheodore Ebert, Jr., did certain interior decorating, painting and paper hanging at the request of Watson & Baschelli, amounting to $83.50. Ebert was made a defendant and filed an answer in the nature of an intervening petition, claiming a lien for the amount due him. There was a reference to a master and upon his report a decree was entered allowing a lien to Ebert for the amount of his claim and also allowing Matot a lien on contracts 1 and 2 and disallowing Matot\u2019s claim under contract 3. From this decree as to Matot, appellants prosecute this appeal, and appellee Matot has assigned cross errors for the failure of the chancellor to enter a decree including the amount due him on the so-called third contract.\nAppellants first contend that appellee Matot is not entitled to the lien because the lien notice was not filed within 4 months from the doing of the last of the work, and while it is admitted that on June 25, 1915, kick plates and brass were put on the doors, the approximate value of which work was $20, it is insisted that this was of such an inconsequential character that it should be disregarded. We do not, however, agree with this contention; on the contrary we are of opinion that the claim for lien was filed within 4 months. Moreover, were this not so, under section 7 of the Liens Act (J. & A. \u00b6 7145), as against the owner, which Bamheisel was, lien claimants had 2 years within which to file their claims. Barnheisel as a lessee for 99 years was, within the purview of section 1 of the Liens Act (J. & A. \u00b6 7139), an owner. In Sorg v. Crandall, 233 Ill. 79, it was held that \u201cowner\u201d as used in the act means the owner of any interest in the land. Paulsen v. Manske, 126 Ill. 72.\nIt is next contended that the interest of Barnheisel in the premises is not subject to the lien claim. It appears that Barnheisel was cognizant of the making of the contracts and sat by and assented thereto; that he had knowledge of the progress made under the contracts, the construction of the kitchen and the making of the other improvements upon his leasehold premises ; that subsequently the sublease to Watson & Baschelli was canceled and Barnheisel took possession of the premises, including the improvements thereon made by appellee.\nWe think the proof abundantly establishes the fact not only that Barnheisel permitted without protest the improvements to be made, but that he affirmatively consented to the making of such improvements. Bamheisel himself testified: \u201cTo tell the truth, I supposed they were working in there, but I didn\u2019t know. \u201d If he \u201csupposed they were working in there,\u201d the law will fasten upon him knowledge of that fact. In these circumstances the interest of Barnheisel in the land is subject to the lien of appellee. Wertz v. Mulloy, 144 Ill. App. 329; Loeff v. Meyer, 284 Ill. 114.\nIt is also contended that there is included in the contracts nonlienable items. If there are any such the proofs do not so disclose. Every item included in the contract was for permanent improvements, which, when installed, became a part of the freehold and were not even removable by the tenant at the expiration of the lease.\nAppellants contend that there is a lack of proper parties, and that the subcontractors of Matot should have,been made parties to the action. There is no force in this contention, as there is no evidence showing that any subcontractor under Matot had any unpaid claim or that any subcontractor had not been paid for work done upon the premises. Furthermore, no such defense is raised by the pleadings, and it comes too late when made in this court for the first time. Jennet Bridge & Iron Works v. Churchill, 182 Ill. App. 548.\nAs the time for filing notice of any liens by subcontractors has long since expired, and there being no evidence in the record that any notice of any claim for a lien has been filed by any of them, we will assume that none of them either has or claims a lien.\nWe now come to the consideration of the cross errors assigned by appellee Matot. His right so to do is challenged. Where an appeal is general, as in the instant case, and not limited, appellee may assign cross errors. Oliver v. Wilhite, 201 Ill. 552.\nWe think, however, the right to assign cross errors was preserved to Matot because he filed objections to the portion of the master\u2019s report disallowing his claim under the so-called third contract, which objections were refiled as exceptions before the chancellor and overruled by both. Matot by these objections and exceptions preserved his right to assign cross errors and have this part of the decree reviewed.\nThe assignment of cross errors involves the so-called third contract. The amount proven under this contract was $949. This contract covered a brick addition to the premises and the claim was disallowed upon the theory that the work thereon was not subsequently completed. The proof shows that-Watson & Baschelli abandoned the contract and the sublease and that Barnheisel took possession of the property upon such abandonment, including all the work done upon the brick addition. Watson & Baschelli first breached the contract and it therefore was not incumbent upon Matot to complete the work. To hold Bamheisel liable to pay for the work done imposes no hardship upon him, because he has received the benefit of all such work. The liability of Watson & Baschelli to pay could hardly be disputed; this being the fact, Bamheisel is equally liable. In other words, Watson & Baschelli could not plead as a defense their abandonment of the premises and the noncompletion of the improvements by Matot after such abandonment. The liability of Bamheisel is coextensive with that of his sublessees for the reason that he was a party to the contract, and a lien for the amount so due extends to the interest of Bamheisel in the land upon which the improvements were made. Russell, Burdsall & Ward v. Excelsior Stove & Manufacturing Co., 120 Ill. App. 23.\nIn Dent v. Sexsmith, 175 Ill. App. 537, it is held that where one party repudiates a building contract the other party may treat the contract as rescinded and recover a reasonable value for work done and material furnished thereunder.\nThe proof shows that there was rightfully due Matot under the contract last referred to $949, for the disallowance of which the decree is to that extent erroneous.\nThe decree of the Superior Court is reversed in part and the cause is remanded with directions to amend the decree by adding to the amount therein found due to Matot the sum of $949, the amount due bim under the so-called third contract, and as so amended to enter the same of record as the final decree in the case, cost of the additional abstract to be taxed as costs in the canse, and all costs hoth here and below to he taxed against appellants.\nReversed in part and remanded with directions.", "type": "majority", "author": "Mr. Justice Holdom" } ], "attorneys": [ "Dickinson, Wetten & Keehn, for appellants.", "Edmund W. Froehlicb:, for appellee." ], "corrections": "", "head_matter": "D. A. Matot, Appellee, v. Frederick R. Barnheisel and Mrs. Frederick R. Barnheisel, Appellants.\nGen. No. 24,318.\n1. Appeal and error, \u00a7 866 \u2014when rule as to furnishing complete abstract not complied with. Rule 18 of the Appellate Court, First District, requiring a party bringing a cause to the Appellate Court to \u201cfurnish a complete abstract or abridgment of the record,\u201d is not complied with where the pleadings, the master\u2019s report, master\u2019s certificate of services, etc., the exhibits to the master\u2019s report, the objections to the masters report, and the decree, are all set out in hcec verba.\n2. Appeal and error, \u00a7 1752 \u2014when affirmance of decree for insufficiency of abstract proper. An abstract which does not comply with rule 18 of the Appellate Court, First District, because setting out the pleadings and record in hcec verba, might properly be stricken from the files and the decree pro forma affirmed.\n3. Mechanics\u2019 liens, \u00a7 196 \u2014when existence of sublease shown. The existence of a sublease is prima facie shown, in proceedings for enforcement of a mechanic\u2019s lien, where although the lessee disclaimed having possession of the lease when it was called for as evidence, yet he admitted its existence and the amount of' the rent per month.\n4. Mechanics\u2019 liens, \u00a7 94 \u2014what is work for purpose of computing 4-month period for filing of lien notice. The putting of kick plates and brass on the doors of a building by a contractor, who is remodeling the building for a sublessee which work is of the value of \u00a720, is not of inconsequential character so as to necessitate the disregarding of it in computing the 4-month period from the doing of the last work within which the lien notice must he filed.\n5. Mechanics\u2019 liens, \u00a7 94 \u2014what is period of time for filing claim, as against owner. Under section 7 of the Mechanics\u2019 Liens Act (J. & A. \u00b6 7145), as against the owner, lien claimants have 2 years within which to file their claims for liens.\n6. Mechanics\u2019 liens, \u00a7 27 \u2014who is \u201cowner\u201d within . act. A lessee for 99 years is an \u201cowner\u201d within the purview of section 1 of the Mechanics\u2019 Liens Act (J. & A. \u00b6 7139).\n7. Mechanics\u2019 liens, \u00a7 27 \u2014what is meaning of word \u201cowner.\u201d The word \u201cowner\u201d as used in the Mechanics\u2019 Liens Act means the owner of any interest in the land.\n8. Mechanics\u2019 liens, \u00a7 32 \u2014when affirmative assent by lessee to snaking of improvements by sublessees shown. On a hill to enforce a mechanic\u2019s lien, evidence held sufficient to show not only that the lessee permitted improvements to be made by a contractor working for the sublessee, but that he also affirmatively assented to the making of such improvements.\n9. Mechanics\u2019 liens, \u00a7 32 \u2014when interest of lessee is subject to for work, done for sublessees. The interest of a lessee in the premises is subject to a mechanic\u2019s lien for work done by a contractor employed by the sublessees, wherp such lessee not only permitted without protest the improvements to be made but also affirmatively consented to the making of such improvements.\n10. Mechanics\u2019 liens, \u00a7 175 \u2014when subcontractors not necessary parties to proceedings to enforce lien. It is unnecessary that subcontractors be made parties to proceedings by the contractor to enforce a mechanic\u2019s lien, where it is not shown that any subcontractor under the contractor has any unpaid claim or that any subcontractor has not been paid for his work done upon the premises.\n11. Mechanics\u2019 liens, \u00a7 212 \u2014when defense raised too late. The defense that subcontractors were not made parties to proceedings to enforce a mechanic\u2019s lien comes too late when made on appeal for the first time.\n12. Mechanics\u2019 liens, \u00a7 212 \u2014when assumed that subcontractors neither have nor claim liens. It will be assumed on appeal, in proceedings to' enforce a mechanic\u2019s lien in favor of the contractor, that subcontractors neither have nor claim liens where the time for filing notice of liens by subcontractors has expired, and there is no evidence in the record that any notice of any claim for a lien has been filed by any of them.\n13. Appeal and ebbob, \u00a7 1077 \u2014when assignment of cross errors proper. Where an appeal is general, and not limited, appellee may assign cross errors.\n14. Appeal and error, \u00a7 1077 \u2014when right to assign cross errors is preserved in favor of contractor in mechanics' liens proceedings. The right to assign cross errors was preserved to the contractor, appellee, in proceedings to enforce a mechanic\u2019s lien in favor of a contractor, where the contractor filed objections to the portion of the master\u2019s report disallowing his claim under the so-called contract, which objections were refiled as exceptions before the chancellor and overruled by both.\n15. Building and constbuotion contracts, \u00a7 75 \u2014when contractor not under duty to complete wortc. It is not incumbent upon a contractor to complete' the work of remodeling a building for sublessees where the latter first breach the contract and abandon the sublease.\n16. Mechanics\u2019 liens, \u00a7 32 \u2014when lien for amount due contractor from sublessees extends to interest of lessee. The liability of a lessee on a contract for work done by contractor for sub-lessees is coextensive with that of the sublessees, where he is a party to the contract, and a lien for the amount so due extends to the interest-of the lessee in the land upon which the improvements were made.\n17. Building and construction contracts, \u00a7 81 \u2014when reasonable value of worlc done and materials furnished may be recovered. Where one party repudiates a building contract the other party may treat the contract as rescinded and recover the reasonable value of the work done and material furnished thereunder.\nAppeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1918.\nReversed in part and remanded with directions.\nOpinion filed November 11, 1918.\nDickinson, Wetten & Keehn, for appellants.\nEdmund W. Froehlicb:, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number." }, "file_name": "0489-01", "first_page_order": 521, "last_page_order": 529 }