{ "id": 856579, "name": "Daniel Murphy v. William A. Harris and Thomas J. McGimsie", "name_abbreviation": "Murphy v. Harris", "decision_date": "1895-01-28", "docket_number": "", "first_page": "351", "last_page": "360", "citations": [ { "type": "official", "cite": "57 Ill. App. 351" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "19 Atl. Rep. 1048", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "28 Pa. St. 153", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 981727 ], "opinion_index": -1, "case_paths": [ "/pa/28/0153-01" ] }, { "cite": "10 Iowa 152", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8664337 ], "opinion_index": -1, "case_paths": [ "/iowa/10/0152-01" ] }, { "cite": "6 Ohio St. 473", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 510575 ], "opinion_index": -1, "case_paths": [ "/ohio-st/6/0473-01" ] }, { "cite": "15 Neb. 637", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 4403883 ], "opinion_index": -1, "case_paths": [ "/neb/15/0637-01" ] }, { "cite": "16 Neb. 153", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2348795 ], "opinion_index": -1, "case_paths": [ "/neb/16/0153-01" ] }, { "cite": "11 Cal. 41", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2298096 ], "opinion_index": -1, "case_paths": [ "/cal/11/0041-01" ] }, { "cite": "56 Tex. 287", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2179584 ], "opinion_index": -1, "case_paths": [ "/tex/56/0287-01" ] }, { "cite": "44 Pa. St. 47", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 484268 ], "opinion_index": -1, "case_paths": [ "/pa/44/0047-01" ] }, { "cite": "72 Me. 106", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 8844111 ], "opinion_index": -1, "case_paths": [ "/me/72/0106-01" ] }, { "cite": "47 N. W. Rep. 1021", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "22 S. W. Rep. 884", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "21 Ill. 99", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2599850 ], "opinion_index": -1, "case_paths": [ "/ill/21/0099-01" ] }, { "cite": "40 Ill. App. 271", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 } ], "analysis": { "cardinality": 829, "char_count": 16372, "ocr_confidence": 0.493, "pagerank": { "raw": 1.5129323407577965e-07, "percentile": 0.6677924079743646 }, "sha256": "f9a2b8fc180ac4a5b88fd3121b252ede64a92d954b67bf80aa5b46f2cb73f929", "simhash": "1:7deb87ccbe3e1a78", "word_count": 2758 }, "last_updated": "2023-07-14T20:02:41.767696+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Daniel Murphy v. William A. Harris and Thomas J. McGimsie." ], "opinions": [ { "text": "Me. Presiding Justice Waterman\ndelivered the-opinion of the Court.\nThe complainants having filed as a part of the bill a copy of the contract they made with Daniel Murphy, it was unnecessary that they should otherwise set forth in the petition the terms of the agreement under which the work was done.\nNor do we think the petition insufficient to base a decree upon, because the account annexed thereto appears to be against Daniel and Mary Murphy instead of against Daniel alone. '\nIf a discrepancy exists between the body of the bill and an exhibit thereto, the exhibit controls. Field v. Brokaw, 40 Ill. App. 271.\nThe verified statement made and furnished to Daniel Murphy of the persons with whom he had dealt, in obtaining the materials and labor used in the construction of appellant\u2019s house, was in compliance with the act of June 16, 1887. The purpose of the statute was that an owner, before he paid the original contractor, might be informed as to the amount due or to become due to persons who might be entitled to liens upon the premises for work thereon done at the instance of the original contractor.\nThis purpose the statement given served. The statute did not, as is urged, require that the details of the contracts or arrangements with materialmen and workmen should be given.\nAppellants made no objection to the statement, asked for no further information, permitting appellees to believe that so far as the knowledge given by this statement is concerned, it contained all the information desired.\nMrs. Murphy acted as her husband\u2019s agent in the construction of these premises, and it being undisputed that the statement reached him, the delivery of it to her was sufficient. The statement filed with the clerk of the Circuit Court, although reading as an account against Daniel Murphy and wife, was a sufficient compliance with the act of May 31, 1887.\nIt is to be borne in mind that in the present action the rights of no incumbrancer, creditor or purchaser are concerned.\nThis proceeding is only against the owner of the improved premises and his wife.\nFTo secret lien is here sought to be enforced.\nEach of the defendants knew all that was being done and the only questions here presented are as to the amount due from Daniel Murphy, and the right to security\u2014a lien therefor upon the premises occupied and owned by the defendants.\nIt is quit\u00e9 evident that the appellant, Daniel Murphy, by his conduct, excused appellees from their original contract obligation to complete the work by the 25th day of October, 1889. As by the terms of the contract the work was to be done to the satisfaction of C. M. Palmer, architect, appellants had no right,'without the consent of appellees, to place Mr. Palmer in a position where he no longer felt that he had power to act under the contract, and had not authority to issue certificates for the work as it progressed.\nWe see no sufficient reason for interfering with the decree of the Superior Court, and it is affirmed.", "type": "majority", "author": "Me. Presiding Justice Waterman" } ], "attorneys": [ "John Olney, attorney for appellant.", "Appellees\u2019 Brief, Masterson & Haft, Attorneys." ], "corrections": "", "head_matter": "Daniel Murphy v. William A. Harris and Thomas J. McGimsie.\nt. Variances\u2014Bills and Exhibits.\u2014Where there is a discrepancy between the body of the bill and the exhibits attached, the exhibits control.\n2. Mechanics\u2019 Liens\u2014Purpose of the Act of 1887.\u2014The purpose of the act of June 16, 1887, was, that the owner, before he paid the original contractor, might be informed as to the amount due or to become due to persons who might be entitled to liens upon the premises for work done at the instance of the original contractor.\n3. Same\u2014Sub-contractor\u2014Construction of the Statute\u2014Statement.\u2014 The statute does not require that the details of the contract with materialmen and workmen should be given, in making the statement. A statement is sufficient which contains all the information required by the statute. (For statements held sufficient, see statement of the case post.)\n4. Secret Liens\u2014Stricter Rules Prevail.\u2014Where a secret lien is to be enforced stricter rules are to be applied.\nMemorandum.\u2014Mechanics\u2019 Liens. Appeal from a decree rendered by the Superior Court of Cook County; the Hon. William G-. Ewing, Judge, presiding. Heard in this court at the October term, 1894, and affirmed.\nOpinion filed January 28, 1895.\nStatement of the Case.\nJuly 16, 1889, Harris & McGimsie contracted in writing with Daniel Murphy to build a house and barn on Wabash avenue, near 63d street, Chicago, for the sum of $4,600 to be paid as the work progressed upon the estimates to be made by C. M. Palmer, architect, reserving fifteen per cent until the whole was completed. The final payment was to be made within fifteen days after the contract was completed, provided the architect should certify in writing that all the work had been done to his satisfaction, contract to be completed by the 25th of October, 1889. April 22, 1890, appellees filed with the clerk of the Circuit Court a claim for lien against Daniel and Mary Murphy for a balance claimed to be due and owing from Daniel Murphy and Mary Murphy of $1,056.56; and on the same day a statement intended to be in accordance with section 35 of the mechanic\u2019s lien law as it then existed was handed to Mrs. Murphy. This statement was against Daniel Murphy alone. Afterward, on May 9, 1890, appellees filed in the Superior Court a petition for mechanic\u2019s lien which, with the amendments thereto afterward made, claimed that in compliance with the contract they built and finished for the said Daniel Murphy and wife a house and barn and performed extra work, and that the work was done and completed on or before January 2,1889, and that there was a balance due on said contract from said Daniel Murphy of $1,056.50. That said Daniel Murphy and Mary Murphy were the owners of the real estate on which said house and barn had been erected, and that there was then due the complainants $1,056.50.\nThe averment in the petition is that petitioners entered into a written contract, with drawings and specifications attached, with Daniel Murphy, a copy of the contract being attached and marked \u201c Exhibit B.\u201d\nThe designation of the locality in the contract is \u201cto be erected on Wabash avenue, near 63d street, Chicago.\u201d The first amendment to the bill corrects a misdescription in the original bill and specifies the property as situated in township 36, instead of township 39.\nThe defendants, Daniel and Mary Murphy, separately answered the petition as amended, denying every material allegation in the bill and amendments thereto, except that the contract had been made.\nJune 29, 1892, the cause was referred to John T. Hoyes, master, to take proofs and report same with his conclusion.\nMay 22, 1894, the master\u2019s report was filed finding that the building was in substantial compliance with the requirements of the contract; that the statement for lien, marked \u201c Exhibit E \u201d (being \u201c Exhibit A \u201d attached to the original bill), does not comply with the requirements of the statute, and that complainants, by reason of their failure to comply with the statutory requirements, have not a lien for the amount in said statement claimed upon the premises in the bill of complaint described; that the material allegations in the bill of complaint are not sustained by the proofs, and that the bill should be dismissed for want of equity.\nDuring the proceeding before the master and on the 29th of July, 1892, the master excluded from evidence the claim for lien, and also the statement filed with the clerk of the Circuit Court as a compliance with the act of May 31, 1887.\nThis statement is as follows :\nMb. Daniel Murphy and Wife,\nTo Harris & McG-imsie,\nCarpenters and Builders. Dr.\nAug. 20. To ain\u2019t on house contract for labor and material...................... $1,265.00\nAug. 20. By cash on account of contract........ 1,100.00\nSept. 18. To ain\u2019t due on contract for material and labor............................... 1,265.00\nSept. 18. By cash on account of contract........ 1,100.00\nOct. 22. To ain\u2019t due on contract for material and labor........... 1,150.00\nOct. 22. By cash on account of contract........ 1,000.00\nNov. 23. To ain\u2019t due on contract for material and labor .............................. 690.00\nNov. 23. By cash on account of contract........ 600.00\nJan. 2. To am\u2019t due on contract for material and labor..................................... 230.00\nOct. 16, 1889. To 72 ft. board fence, 5 ft. 4 in. high, at 30c.......... 21.60\nOct. 16. To picket fence, front steps to front steps....................... 5.00\nOct. 19. To enlarging front porch.............. 10.00\nOct. 19. To extra sewer from sink wastes to catch basin......................................$ 8.00\nOct. 19. To extra stone coping on back area walls 1.50\nOct. 23. \u201c pine closets extra, complete......... 65.00\n3 china cup- ~ u boards..... 54.00\n66 per agreement.... To 4 sets drawers. 21.00\nu \u201c picture mold.. 12.00\nNov. 16. To large gate in front fence........... 3.00\n66 \u201c window in front porch, complete.... 2.50\n66 \u201c 13 panes glass in transom.......... 4.00\n66 \u201c 2 \u201c \u201c window at top of stairs .60\n66 \u201c 3 mortise bolts.................... ' 1.20\n66 19. \u201c maple floor in bath-room........... 6.00\nDec. 19. To one piece sewer, $6; one case drawers, $6............................ 12.00'\nDec. 19. To lumber and bits for cupboard in bathroom ............................ .60\nDec. 19. To 21 hours time changing doors...... 8.40\n66 20. To putting stalls and harness cupboard in barn........................... 20.00\nDec. 20. To changing moldings on plumbing boards........................... 5.00\nOct. 26. By cash on account of half of 12 ft. fence paid Dr. Elpsy.................... 10.80\nBalance due. .$1,056.50\nState of Illinois, 1 Cook County, j ss\nIn the Circuit Court of Cook County.\nThe following is a just and true statement on account of the demand due the undersigned, Harris & McGimsie, from Daniel Murphy and Mary Murphy, bis wife, after allowing to him all credits and set-offs for labor performed and materials furnished, as follows, to wit: Each and every of the items as set forth on the hereto attached itemized bill, which is made part of this statement, the same as if embodied herein, which bill is marked \u201c Exhibit A,\u201d and shows a balance of $800, upon contract, and $236.50 for extra work, material and labor, making a total balance of $1,056.50 due the undersigned from the said Daniel Murphy and Mary Murphy his wife. The following is a correct description of the real estate, building and property to be charged with the lien, to wit: A two-story and basement flat building and a story and one-half barn, and that certain parcel of land described as the north fifty feet (50) of lot thirty-three (33) of \u00a1Nash, Gray and Pankin\u2019s subdivision of the south twenty-seven acres of southwest one-fourth (J), of the southwest one-fourth (\u00cd), of section fifteen (15), township thirty-nine (39) north, of range fourteen (14) east of the principal meridian, Hyde Park, Cook County, Illinois.\nHarris & McGimsie, Thomas J. McGimsie.\nState oe Illinois, ) County of Cook. j ss\u00b0\nThomas J. McGimsie, of the firm of Harris & McGimsie, being first duly sworn, on oath deposes and says, that his firm has performed the labor and furnished materials at the dates set forth in the above statement of claim for a lien, and \u201cExhibit A\u201d is just and true, and the material and labor as therein set forth was furnished at the several times set forth and inwrought into the building above described, and there is now due his firm from said Daniel and Mary Murphy, for said labor and materials, after allowing all credits and set-offs, the sum of one thousand and fifty-six 50-100 dollars, which affiant charges and alleges is a lien upon the said above described premises.\nThomas J. McGimsie.\nSubscribed and sworn to before me, this 22d day of April, A. D. 1890.\nE. F. Mastersoh, \u00a1Notary Public.\nThe statement furnished to Daniel Murphy as a compliance with the act of June 16, 1867, amending section 35 of chapter 82, entitled \u201c Liens,\u201d is as follows:\nThomas J. McGimsie states, on oath, that Harris & McGimsie were contractors for all the work on the buildings \u00e9rectedfor Daniel Murphy on the premises described as two-story and basement flat building and one and a half story barn. That this affidavit is made for the purpose of procuring from said Daniel Murphy a final payment on account of our contract with him for said work.\nI had contracted with the persons named in the following schedule for the materials furnished and used by us in the construction of said building, of the kinds and in the amounts set opposite their respective names, and there is now due or to become due them respectively on account thereof the amount set out in the column marked \u201c due or to become due.\u201d\nSchedule of Materials.\nMarne. Materials. Due or to Become due.\nE. L. Moss, Brick Mason, -\nHasey & Graham, Millwork, -\nA. F. Kaufman, Painter, \u00a736.67\nJ. F. Walthers, Plumber, 41.37\nM. Murphy, Painter, 57.5.8\nP. H. Dowdle, Plasterers, -\nAnderson, Bell-hanger, -\nK. S. Howell & Go., Lumber, -\nI had in my employ account of said building, the following named persons, on \u25a0 at the rates of wages expressed in the following schedule, and there are now due or to become due to them the sums set opposite their respective names therein.\nSchedule of Employes.\nMarne. Kate Due or to of wages. become due.\nJ. Mellson, 30c. -\nGuse Johnson, << -\nPeter Schmidt, U -\nJ. Julian, u -\nMatt. Owen, \u00cd\u00cd -\nC. J. Johnson, \u00ab -\nM. Peterson, it -\nT. J. Wagner, u -\nName. Eate of wages. Due or to become due.\nC. Newman, 30c.\nGeo. Harris, \u201c--\nJ. Powers, \u201c---\nH. Libbet, ce -\nP. Burquest,