{ "id": 856596, "name": "Elizabeth Sebastian v. Joseph Rass", "name_abbreviation": "Sebastian v. Rass", "decision_date": "1895-02-12", "docket_number": "", "first_page": "417", "last_page": "423", "citations": [ { "type": "official", "cite": "57 Ill. App. 417" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "46 Ill. App. 287", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5149027 ], "opinion_index": -1, "case_paths": [ "/ill-app/46/0287-01" ] }, { "cite": "64 Ill. 334", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "6 Pa. St. 187", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 954536 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/pa/6/0187-01" ] }, { "cite": "90 Ill. 70", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2755315 ], "opinion_index": -1, "case_paths": [ "/ill/90/0070-01" ] }, { "cite": "40 Ill. App. 776", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": -1 }, { "cite": "35 Ill. App. 71", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5005977 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill-app/35/0071-01" ] }, { "cite": "145 Ill. 389", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5484866 ], "opinion_index": -1, "case_paths": [ "/ill/145/0389-01" ] }, { "cite": "50 Ill. App. 263", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": -1 }, { "cite": "50 Ill. App. 467", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5119393 ], "opinion_index": -1, "case_paths": [ "/ill-app/50/0467-01" ] }, { "cite": "13 Gray 555", "category": "reporters:state", "reporter": "Gray", "opinion_index": 0 }, { "cite": "34 Pa. State 365", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 417975 ], "opinion_index": 0, "case_paths": [ "/pa/34/0365-01" ] }, { "cite": "11 Gray 250", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 2084755 ], "opinion_index": 0, "case_paths": [ "/mass/77/0250-01" ] }, { "cite": "18 Ill. App. 243", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 865088 ], "opinion_index": 0, "case_paths": [ "/ill-app/18/0243-01" ] }, { "cite": "12 Ill. App. 288", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "50 Ill. App. 233", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5123905 ], "opinion_index": 0, "case_paths": [ "/ill-app/50/0233-01" ] }, { "cite": "46 Ill. App. 287", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5149027 ], "opinion_index": 0, "case_paths": [ "/ill-app/46/0287-01" ] }, { "cite": "6 Pa. St. 187", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 954536 ], "opinion_index": 0, "case_paths": [ "/pa/6/0187-01" ] }, { "cite": "145 Ill. 389", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5484866 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/145/0389-01" ] }, { "cite": "50 Ill. App. 467", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5119393 ], "opinion_index": 0, "case_paths": [ "/ill-app/50/0467-01" ] } ], "analysis": { "cardinality": 589, "char_count": 13803, "ocr_confidence": 0.502, "pagerank": { "raw": 2.4275083284563495e-07, "percentile": 0.8016648847094946 }, "sha256": "d59d7b8ae23b775b8c516e577ce1cbfc4e1964f387eab1ed5769e755b72e50e1", "simhash": "1:bb3592d470372e9a", "word_count": 2401 }, "last_updated": "2023-07-14T20:02:41.767696+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Elizabeth Sebastian v. Joseph Rass." ], "opinions": [ { "text": "Mr. Presiding Justice Waterman\ndelivered the opinion of the Court.\nIt being necessary to the maintenance of a lien that the petitioner should -have filed with the clerk of the Circuit Court a verified statement of the amount due him, etc., appellee alleged in his petition that he filed such statement on the 23d day of June, 1893.\nThe holdings of this court in Bennett v. Armknecht, 50 Ill. App. 467, and in Moore v. Parrish, 50 Ill. App. 233, that as between an original contractor and the owner the filing of such statement is unnecessary, are overruled by Campbell v. Jacobson, 145 Ill. 389.\nUpon the trial the complainant offered a paper as \u201c the sworn statement filed on the 23d day of June, 1893.\u201d To the introduction of this, appellant objected for the following reasons:\nFirst. That the statement had added to it an amendment since it was filed.\nSecond. That the statement as originally filed was not within the law.\nThereupon evidence was heard tending to show that the statement offered was not that filed; that the paper presented had been changed since it was filed.'\nAmong other evidence offered by appellant as to the alteration of this paper was the testimony of one M. D. Ewell, an expert as to handwriting and inks. This the court refused to receive. We think that such evidence should have been admitted. Rice on Evidence, Vol. 1, page 330; Greenleaf on Evidence, Sec. 440; James v. Johnson, 12 Ill. App. 288 (290); Aalewasser v. Hazlitt, 18 Ill. App. 243 (244); Quinsigamond Bank v. Hobbs, 11 Gray 250 (257); Fulton v. Hood et al., 34 Pa. State 365 (370, 371); Reese v. Reese, 90 Pa. State, page 89 (94); Dickinson v. Fitchburg, 13 Gray 555.\nThe court seems to have been of the impression that the document offered, being a paper filed for record in the office of the clerk of the Circuit Court, the chancery branch of the Superior Court had, in this proceeding, no authority to inquire into the fact of the interpolations and alterations having been made in such statement until it was filed. The document offered purported to be the very instrument that was filed in the office of the clerk of the Circuit Court on the 23d day of June, 1893; if it was not such instrument, if it had since the filing been changed, then it was not, as it appeared, admissible, but could only be received as it was when filed. A change, made at some time, appearing upon inspection of the document, it was competent for the court, indeed, its duty, when called upon, to ascertain in what condition the instrument was, how it read, in brief, what is the statement that was filed June 23, 1893.\nThis proceeding being a civil one, in order that the court should reject the paper offered or so much thereof as was necessary to restore it to the condition it was when filed, it was not necessary that the court should be satisfied beyond a reasonable doubt that the document offered in evidence and having the file mark of the clerk of the Circuit Court thereon, had been altered since the filing thereof.-\nThe statement purporting to have been .filed with the clerk of the Circuit Court, as admitted in evidence, contained the following as its only setting forth of the time when the work done and materials supplied were furnished :\n\u201c The carpenter work and joiner work above referred to was done and all materials were furnished for the doing of said work between the 29th day of November, 1892, and the 23d day of May, 1893.\u201d\nThe statute of this State thereby intended to be complied with, is Sec. 4, Chap. 82, R. S.:\n\u201c Every creditor or contractor who wishes to avail himself of the provisions of this act shall file with the clerk of the Circuit Court * *' * a just and true statement * * setting forth the time when such material was furnished or labor performed.\u201d\nThe statement filed gives a period of about six months within which materials were furnished and work performed.\nAll may have been done on the 30th day of November, 1892, or the 22d day of May, 1893.\nIt is insisted that as the claim here made is upon an alleged contract to do the work and -furnish the materials for building, according to plans and specifications, a certain house, the statement is sufficient.\nIf petitioner Avas to have a certain sum for building a house, then the house, labor and material would, under such contract, be done and* furnished when the contract was complete.\nSuch a statement as is presented in this case is not, under the contract alleged in the petition, a compliance with the statute. Campbell v. Jacobson, 46 Ill. App. 287; same, 145 Ill. 389; The Associates of the Jersey Co. v. Division, 29 N. J. L. R. 415-421; Noll v. Swineford, 6 Pa. State 187; 2 Jones on Liens, Sec. 1404.\nThe petition alleges that on the 29th day of November, 1892, petitioner made a written contract with appellant. The contract introduced in evidence was signed \u201c Elizabeth Sebastian, by Joseph Bettinghofer, Agent.\u201d\nMrs. Sebastian denies that she ever gave Mr. Bettinghofer any authority to sign her name to the \u201c contract.\u201d In view of the testimony of Mr. Bettinghofer that he did not sign the contract before the suit was begun, that it was riot signed at that time, but still he \u201c had it in his possession and could sign it any time he wanted to,\u201d and that he signed the contract about a week before he testified upon the trial, and also in -view of other evidence, we do not think that his authority to sign appellant\u2019s name to the contract was established.\nThe petition alleges that appellant made a written contract on the 29th day of November, 1892; the evidence, according to the testimony given on the petitioner\u2019s behalf, is that no written contract was signed by her through Bettinghofer, her agent, until some time in 1894, about a year after this suit was begun; consequently no written contract was made by her until long after this suit was commenced.\nFor these reasons the decree of the Superior Court is reversed and the petition dismissed.", "type": "majority", "author": "Mr. Presiding Justice Waterman" } ], "attorneys": [ "Appellant\u2019s Brief, Winston & Meagher, Attorneys.", "Arnold Tripp, attorney for appellee." ], "corrections": "", "head_matter": "Elizabeth Sebastian v. Joseph Rass.\n1. Mechanic\u2019s Liens\u2014Filing Statement a Condition Precedent.\u2014It is necessary to the maintenance of a suit for a mechanic\u2019s lien that the petitioner should have filed with the clerk of the Circuit Court a verified statement of the amount due him. Bennett v. Armknecht, 50 Ill. App. 467; Moore v. Parrish, 50 Ill. App. 263; overruled, Campbell v. Jacobson, 145 Ill. 389.\n2. Same\u2014Alteration of Statement After Filing.\u2014Upon the trial of a suit for a mechanic\u2019s lien, evidence tending to show that the statement required to be filed had been changed since it was filed, is competent and should be admitted.\n8. Alteration of Instruments\u2014Statement in Mechanic's Lien Proceedings.\u2014It is competent to show that the statement required to be filed under the mechanics\u2019 lien law, has been changed since it was filed. If admissible at all, it is so in the condition- in which it was originally filed.\n4. Same\u2014Sufficiency of the Statement.\u2014A statement under Sec. 4, Ch. 82, R. S., entitled \u201c Liens,\u201d which states that \u201c the carpenter work and joiner work above referred to was done, and all materials were furnished for the doing of said work between the 29th day of November, 1892, and the 23d day of May, 1893,\u201d is not a sufficient \u201c setting forth the time when such material was furnished or labor performed,\u201d under the contract set out in the petition.\n5. Variance\u2014Mechanic's Lien\u2014Petition and Proofs.\u2014Where a petition for a mechanic\u2019s lien alleged that a written contract was made, and on the trial it appeared that the contract was not signed- until a year after the suit was commenced, and then by a person whose authority to do so was denied, the petition was dismissed.\nMemorandum.\u2014Proceedings for a mechanic\u2019s lien; appeal from a decree entered by the Superior Court of Cook County; the Hon. William G-. Ewing, Judge, presiding. Heard in this court at the October term, 1894.\nReversed and petition dismissed.\nOpinion filed February 12, 1895.\nStatement of the Case.\nThis was a petition for mechanic\u2019s lien.\nIn the fall of 1892, Elizabeth Sebastian, appellant, being desirous of erecting a'building on her property, visited one Joseph Bettinghofer, an architect, stated her ideas concerning the building she wished to erect, and requested him to draw for her certain plans. Specifications having been drawn, Bettinghofer, the architect, requested various contractors to send in bids for the erection of the building. Among the various bids received by Bettinghofer from contractors for the carpenter and wood work upon the building, was one from Joseph Bass, appellee. The estimates of the contractors were submitted by Bettinghofer to Mrs. Sebastian and she accepted Bass\u2019 bid, he proposing to do the work in question, according to the plans and specifications, for the sum of $3,000.\n- To this point the facts are undisputed, but from here forward they are largely in dispute.\nIt is urged by the appellee, petitioner below, that at one of the conversations had by Bettinghofer with the defendant, in the fall of 1892, she authorized him to draw up and sign for her, as her agent, a contract with Bass, under the terms and conditions of which Bass Avas to perform the work and Bettinghofer was to be the final arbiter as to the completion of the building in question in accordance Avith the terms of the contract, and to certify to Mrs. Sebastian as to the specific performance of the work by Bass, when it had been so completed. This is strenuously denied by the defendant, Avho claims that she never at any time, under any circumstances, authorized Bettinghofer to sign her name to any contract, or to accept for her or on her behalf the work performed by Bass; but on the contrary, she urges that Bettinghofer was to draw a contract, under which Bass was to do the work, and was to send the same to her at her home for. her approval and signature; that such a contract was never submitted to her for her approval; and that, prior to the beginning of this suit, she never knew or heard of any written contract being in existence. The disputed question of Bettinghofer\u2019s agency to sign Mrs. Sebastian\u2019s name to a written contract is one of the questions which this court is called upon to review.\nBe that as it may, Bettinghofer did draw a contract dated \u00a1November 11, 1892; Bass signed it, and early in December of the same year began his work on the building. The building progressed, and from time to time Mrs. Sebastian paid Bass, or had paid to him by the JEtna Building and Loan Association, on her behalf, the sum of $2,000. On or about March 31, 1893, Bass presented to her a certificate from Bettinghofer for $800, and about May 25, 1893, a second certificate, being for $200. Both of these last certificates were O K\u2019d by Bettinghofer, but Mrs. Sebastian declined to pay them on the ground that the building was not erected in accordance with the plans and specifications.\nAppellant claims that at the time of the presentation of the final certificate, the building had not been completed in accordance with the plans and specifications, and that in many essential particulars it differed from them; also that Bettinghofer knew that the building had not been completed in accordance with the plans and specifications, and that, regardless of such knowledge, he accepted the same so far as he was personally concerned, and certified to the defendant, Mrs. Sebastian, that the work had been satisfactorily completed by Bass.\nSubsequently, on the 23d of June, 1893, a statement of claim for lien was filed with the clerk of the Circuit Court of Cook County, by the solicitor for the complainant, and on the 26th day of June, 1893, a petition for a mechanic\u2019s lien was filed in the Superior Court. Answer was duly filed by the defendant in October, 1893. In February, 1894, the case was called for trial, and in April of the same year, a decree was entered therein, substantially sustaining the allegations and granting the prayer of the complainant\u2019s petition. To reverse that decree the appellant prosecutes this appeal.\nAppellant\u2019s Brief, Winston & Meagher, Attorneys.\nThe statute requires that every creditor or contractor who wishes to avail himself of the provisions of the mechanic\u2019s lien act shall file with the clerk of the Circuit Court of the county in which the building, erection or other improvement to be charged with the lien is situated, a just and true statement, or account or demand due him, after allowing all credits, setting forth the times when such material was furnished or labor performed, and containing a correct description of the property to be charged with the lien, and verified by an affidavit. 3 Starr & Curtis Statutes, Chap. 82, Par. 4.\nThe mechanic\u2019s lien statute is in derogation of the common law, and must be strictly construed. McDonald v. Rosengarten, 35 Ill. App. 71; Seiler v. Schaefer, 40 Ill. App. 776; Belanger v. Hersey, 90 Ill. 70; Noll v. Swineford, 6 Pa. St. 187; Stephens v. Holmes, 64 Ill. 334.\n\u201c If the carpenter work and joiner work referred to were done and all materials were furnished for the doing of said work between the 29th day November, 1892, and-the 23d day May, 1893,\u201d and were not added to the statement of claim for lien, it would be insufficient under the law. McDonald v. Rosengarten, 35 Ill. App. 71; Campbell v. Jacobson, 46 Ill. App. 287.\nThe single sentence, \u201c The carpenter work and joiner work above referred to was done and all materials were furnished for the doing of said work between the 29th day of November, 1892, and the 23d day of May, 1893,\u201d is not sufficient to bring the statement of the claim for lien within the statute, and within the construction of the statute as laid down by this court in the cases hereinabove last cited, and by the Pennsylvania court in Noll v. Swineford, 6 Pa. St. 187.\nArnold Tripp, attorney for appellee." }, "file_name": "0417-01", "first_page_order": 413, "last_page_order": 419 }