{ "id": 5176645, "name": "Winkle Terra Cotta Company v. The Galena Safety Vault and Trust Company et al.", "name_abbreviation": "Winkle Terra Cotta Co. v. Galena Safety Vault & Trust Co.", "decision_date": "1896-04-27", "docket_number": "", "first_page": "184", "last_page": "186", "citations": [ { "type": "official", "cite": "64 Ill. App. 184" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "44 Ill. App. 48", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5070493 ], "opinion_index": 0, "case_paths": [ "/ill-app/44/0048-01" ] }, { "cite": "2 Gilm. 424", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2558268 ], "opinion_index": 0, "case_paths": [ "/ill/7/0424-01" ] }, { "cite": "142 Ill. 258", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3086605 ], "opinion_index": 0, "case_paths": [ "/ill/142/0258-01" ] }, { "cite": "136 Ill. 68", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2992939 ], "opinion_index": 0, "case_paths": [ "/ill/136/0068-01" ] }, { "cite": "121 Ill. 571", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5386729 ], "opinion_index": 0, "case_paths": [ "/ill/121/0571-01" ] }, { "cite": "49 Ill. 116", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2603728 ], "opinion_index": 0, "case_paths": [ "/ill/49/0116-01" ] }, { "cite": "24 Ill. 268", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5288048 ], "opinion_index": 0, "case_paths": [ "/ill/24/0268-01" ] }, { "cite": "44 Ill. App. 304", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5068564 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/44/0304-01" ] }, { "cite": "132 Ill. 377", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5419766 ], "opinion_index": 0, "case_paths": [ "/ill/132/0377-01" ] }, { "cite": "33 Ill. App. 312", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4992593 ], "opinion_index": 0, "case_paths": [ "/ill-app/33/0312-01" ] }, { "cite": "126 Ill. 373", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5405794 ], "opinion_index": 0, "case_paths": [ "/ill/126/0373-01" ] } ], "analysis": { "cardinality": 320, "char_count": 4697, "ocr_confidence": 0.499, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15602492654977182 }, "sha256": "e676d5fbb4ca8a1a261681dee2913c961698b7869bf739fd5f2691fca57afddb", "simhash": "1:3471468369f950d1", "word_count": 810 }, "last_updated": "2023-07-14T18:42:36.948645+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Winkle Terra Cotta Company v. The Galena Safety Vault and Trust Company et al." ], "opinions": [ { "text": "Mr. Presiding Justice Gary\ndelivered the opinion of the Court.\nThe appellant filed this petition against the Vault company and Michael Greenebaum\u2019s Sons Company to enforce a mechanic\u2019s lien upon the premises of the Vault company. The petition was dismissed upon separate demurrers of the Sons company and the Vault company.\nThe petition alleges that the Sons company undertook to erect a building for the Vault company, and contracted with the appellant for work and materials to be paid for \u201c upon the presentation \u201d of architect\u2019s certificates\u2014fixing no time. The appellees rely upon Adler v. World\u2019s Pastime Ex. Co., 126 Ill. 373, as holding that the time of payment not being fixed by the contract, no lien could accrue. Without attempting to distinguish this case from that, it appears that the court there first held that the contract itself was for a kind of service which, in part, could not create a lien, and that as a lien must he for all or none, there could be no lien for the other part.\nThe question here involved was apparently very slightly considered, and the authorities there cited are a part of those giving rise to the \u201c painful uncertainty \u201d of which mention is made in Porteous v. Holmes, 33 Ill. App. 312, affirmed as to the lumber dealer there alluded to, though without comment upon the principles of the opinion here, in Porteous v. Badenoch, 132 Ill. 377.\nWe adhere to these -principles, and deem it unnecessary to repeat them. Benner v. Schmidt, 44 Ill. App. 304.\nThe next objection is, that the petition does not show that any architect\u2019s certificates were presented.\nThe petition alleges a settlement with the Sons company, and its promise to pay the balance unpaid. The Vault company was no party to the contract. Those who made could modify it, and waive any part of its provisions.\nIf, as modified, the contract would have been valid originally, and performance of it a basis for a lien, the fact that performance was not according to the terms of the original, but of the modified contract, does not defeat the lien.\nThat is the principle of Nibbe v. Brauhn, 24 Ill. 268; of Baxter v. Huchings, 49 Ill. 116; of Paddock v. Stout, 121 Ill. 571; of Michaelis v. Wolf, 136 Ill. 68; and of common sense. Benner v. Schmidt, 44 Ill. App. 304.\nThe petition alleges that on a day named \u201c the said subcontract of your petitioner was fully completed by the final delivery of all of the materials required thereby, and the construction and finishing of the terra cotta and the setting of the same; and said contract, and all of the specifications and requirements thereof, were on said day fully and exactly performed by your petitioner.\u201d\nIn citing Short v. Kieffer, 142 Ill. 258, as authority that such allegation of performance is insufficient, the appellee\u2019s counsel forget that the bearings of an opinion lie in the application of it.\nWhen performance is a question of fact for a jury, the general allegation is the most proper; when a question of law for the court, the manner of performance must be stated. Byrne v. McNulty, 2 Gilm. 424, cited in Chi., Mil. & St. P. Ry. v. Hoyt, 44 Ill. App. 48.\nThe residue of the appellee\u2019s brief is answered by what is already said, except an objection that the appellant did not serve, with its notice to the Vault company, a copy of its final contract with the Sons company.\nAs whatever modifications there were, were oral, no copy could be served. Sec. 31, Ch. 82, 1874.\nThe petition is sufficient, if true, and the appellant must be allowed to try to prove it.\nThe decree is reversed and the cause remanded, with directions to overrule the demurrers.\nReversed and remanded with directions.", "type": "majority", "author": "Mr. Presiding Justice Gary" } ], "attorneys": [ "Edwin White Moore, attorney for appellant.", "Newman, Northrup & Levinson, attorneys for appellees." ], "corrections": "", "head_matter": "Winkle Terra Cotta Company v. The Galena Safety Vault and Trust Company et al.\n1. Mechanics\u2019 Liens\u2014Time of Performance.\u2014A petition for a mechanic\u2019s lien, which alleges that one of two defendants undertook to erect a building for the other and contracted with the petitioner for work and materials to be paid for upon the presentation of architect\u2019s certificates, sufficiently fixes the time for the performance of the contract.\n2. Same\u2014Original and Modified Contracts.\u2014The parties to a contract may modify it, and if as modified it would have been valid originally, and the performance of it a basis for a lien, the fact that performance was not according to the terms of the original, but of the modified contract, does not defeat the lien.\nPetition for a Lien.\u2014Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.\nHeard in this court at the March term, 1896.\nAffirmed.\nOpinion filed April 27, 1896.\nEdwin White Moore, attorney for appellant.\nNewman, Northrup & Levinson, attorneys for appellees." }, "file_name": "0184-01", "first_page_order": 182, "last_page_order": 184 }