#### Engel M. Koeritz v. Martin Neimes et al.

Mechanic's Lien—Payment—•Conflict of Evidence.

Upon a petition by a sub-contractor for a mechanic’s lien, this court affirms the decree for the petitioner, the evidence being conflicting but sufficient to sustain the decree.

[Opinion filed May 16, 1888.]

Appeal from the Superior Courj; of Cook County; the Hon. Gwynn Garnett, Judge, presiding.

Messrs. Runyan & Runyan, for appellant.

Mr. Clarence F. Dore, for appellees.

Bailey, J.

This was a petition by a sub-contractor for a mechanic’s lien. Martin Neimes, the petitioner, alleges in his petition that, on the 15th day of September, 1884, Theodore Kaiser, a carpenter and builder, entered into a written contract with Engel M. Koeritz, acting through her husband, Henry Koeritz, by which said Kaiser agreed to build and erect a three-story and basement double brick building, according to certain plans and specifications, on certain lots in the City of Chicago belonging to said Engel M. Koeritz, said building to be com*563pleted on or before December 15, 1884, for the contract price of $10,400, a part of said money to be paid to said Kaiser in certain installments during the progress of the work and the residue at its completion; that on the 20th day of October^ 1884, said Kaiser entered into a written contract with Martin Keirnes, the petitioner, by which it was agreed that the petitioner should do all the carpenter and joiner work, rooting, cast iron and galvanized iron work in said building for the sum of §5,400, said money to be paid as the work progressed; that, by consent of the parties, various changes were made in the plan and construction of said building, and the time for the completion thereof extended to January 15,1884; that the petitioner performed and completed his agreement, and that there is due him thereon the sum of $2,900; that said Engel M. Koeritz has paid said Kaiser on their said contract the sum of $7,000, and that there is still due said Kaiser thereon the sum of §3,400; that on the 24th day of January, 1885, the petitioner served on said Engel M. Koeritz the notice required by statute, together with a copy of his contract with said Kaiser, and has frequently requested her to pay him said sum of §2,900, but that she had neglected and refused so to do.

An answer and replication were filed, and the cause coming on to be heard on pleadings and proofs, the court found the material facts averred in the petition to be true, and found the amount due from Mrs. Koeritz to Kaiser, including interest, to be $3,311.13, and the amount due from Kaiser to the complainant, including interest, to be $2,804.21, and decreed the petitioner a lien on said premises for that amount.

The principal controversy at the hearing was as to the amount remaining unpaid by Mrs. Koeritz to the principal contractor, and upon this question the evidence is quite conflicting. It is claimed by Mrs. Koeritz, that at the time the contract was made, Kaiser agreed to accept as part payment, credits upon an existing indebtedness of $3,600 from him to the firm of Koeritz & Tatge, composed of Henry Koeritz and one Tatge, and that at least $2,500 of the amount now claimed to be due was paid by credits on that indebtedness. Ho provision for that mode of payment was inserted in the contract, *564and the evidence is sharply conflicting as to whether there was any such agreement or understanding, or whether any payments were in fact attempted to be made by such credits. We have carefully examined the evidence and need only say that it sustains the decree. The learned chancellor who presided at the hearing in the court below saw and heard the witnesses, and was in a better position than we can be to judge of their credibility, and to determine the questions of fact thus brought in controversy. As we are unable to see that he has misconstrued the evidence, we must accept the conclusions at which he has arrived.

Some other propositions are raised by the appellant, but we find none of them sustained by the record. The decree will he affirmed.

Decree affirmed.