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Appeal from appellate court, First district. Petition by the Carey-Lombard Lumber Company against J. Russell Jones and others to enforce a mechanic's lien. A decree for petitioner was reversed by the appellate court, and it appeals. Reversed.

Appellant was petitioner in the circuit court of Cook county to enforce a lien against city lots in Chicago, owned by appellee J. Russell Jones, for lumber furnished to construct certain improvements thereon. Appellee Jones and Elizabeth, his wife, together with T. C. Kane and David Meyer, were made defendants to the petition. Jones and wife alone answered, and upon replication a hearing was had, resulting in a decree in conformity with the prayer of the petition. On appeal, the branch appellate court for the First district reversed that decree, and remanded the cause, with directions to dismiss the proceeding. This appeal is from that judgment.

The petition sets forth that the petitioner, on April 16, 1890, entered into a contract with the defendants Kane and Meyer to furnish building materials for the erection of buildings on the lots, a copy of the agreement being attached, marked "Exhibit A." By an amendment to the petition, it is averred that the said Kane and Meyer at the time held a lease on the lots from Jones, a copy being attached, marked "Exhibit D." It is also averred that buildings were erected in accordance with the terms of said lease, which became the property of Jones; that on December 1, 1896, Jones declared said lease forfeited, and entered into possession, renting the same to other parties for an annual rental of $1,762.50, being $262.50 in excess of the rent reserved in the lease to Kane and Meyer; and that the latter thereupon became, and ever since remained, insolvent. Exhibit D, the lease alleged to have been entered into between Jones and Kane and Meyer, bears date February 5, 1896, and the material parts of it, for the determination of the questions here involved, are as follows: The first clause is a contract in the usual form, for the leasing of the property from the 1st day of May, 1896, for a term ending April 30, 1901. The next clause provides for the payment of rent at the rate of $1,500 per annum, payable by installments, as stated. The next clause is as follows: "It is further expressly understood and agreed that the said party of the second part shall, within four months from the date hereof, erect upon said premises buildings and other permanent improvements to cost not less than the sum of six thousand dollars ($6,000), the plans and specifications for which said improvements are to be submitted to the said party of the first part for his approval before the work thereon shall begin, and no buildings or other improvements of any kind shall be placed on said premises without first obtaining, in writing, such approval of the plans thereof by said party of the first part.

It is further understood and agreed that all buildings, fences, walks, and improvements, of every kind and nature whatsoever, so erected or placed on said premises by the said party of the second part, shall, when placed thereon, become immediately a part of the realty and the property of the said party of the first part; and that upon the termination of this lease, either by limitation or otherwise, such buildings and improvements of every kind, which shall have been placed upon said premises by said parties of the second part, are to be at once delivered into the possession of said party of the first part, together with the ground herein demised. It is further un

derstood and agreed that should said party of the first part desire to use the premises herein demised at any time after the expiration of the first year of the term hereof, for the purpose of erecting buildings thereon or any other purpose, he shall have the right to terminate the said term upon first giving ninety days' written notice unto said parties of the second part of his intention so to do, and upon the payment to said parties of the second part, should such termination occur, pursuant to the right in this clause given, at any time during the second year of the term hereof, the sum of $4,800; or, should such termination occur at any time during the third year of the term hereof, the sum of $3,600; or, if at any time during the fourth year of the term hereof, the sum of $2,400; or, if at any time during the fifth year of the term hereof, the sum of $1,200. It is further understood and agreed that for the cost of any of the buildings or improvements which may be made by the parties of the second part during the term of this lease they shall permit no mechanics' liens to attach to said premises, and that should said parties of the second part fail to keep this agreement, and the said party of the first part be obliged, in order to protect said premises, to pay off and discharge any such mechanics' liens, he shall have the right forthwith to terminate the term hereof, upon thirty days' notice to said parties of the second part, in writing, of his intention so to do. It is further understood and agreed that the said second parties are to have the right, at any time subsequent to the execution hereof and prior to the beginning of the term of this lease, to enter upon said premises for the purpose of erecting or constructing such buildings and improvements as are herein contemplated, and that for such period as they may so hold possession of said premIses prior to the beginning of the term of this lease they shall not be required by said party of the first part to pay any rent." It is next provided that the lessees shall keep all buildings and improvements placed upon the premises insured in the name of the lessor, for their full insurable value, and in default thereof the lessor may insure the same for himself, charging the same to the lessees. Other provisions relate to paying

water tax; keeping the premises in a clean and wholesome condition, in accordance with the ordinances of the city and the directions of its health officers; that premises shall not be underlet, etc. The claim of the petitioner is for $1,111.47, with interest from November 25, 1896, amounting in all to $1,219.84, for lumber and materials furnished for the erection of the buildings. It is averred that on November 28, 1896, the petitioner filed with the clerk of the circuit court of Cook county a statement in writing setting forth the amount due, with a correct description of the property.

The answer of the defendants Jones and wife, as shown by the abstract, admits all the material allegations of the amended petition, except the averment that after the forfeiture of the lease by Jones the premises were leased to other parties for an annual rental of $1,762.50, or any sum in excess of the rent reserved in the forfeited lease, and denies that petitioner is entitled to interest upon its claim, and denies generally that the petitioner is entitled to the relief prayed.

James H. Hooper, for appellant. Green, Honore & Peters, for appellees.

Sec

WILKIN, J. (after stating the facts). tion 1 of the mechanic's lien law of this state, in force June 26, 1895 (Hurd's Rev. St. 1897, p. 1034), provides "that any person who shall by any contract with the owner of a lot or tract of land, or with one whom such owner has authorized or knowingly permitted to improve the same, furnish or specially manufacture and prepare materials, fixtures, apparatus or machinery for the purpose of, or in building, altering, repairing or ornamenting any house or other building,

shall be known under

this act as a contractor, and shall have a lien upon the whole of such tract of land or lot and upon the adjoining or adjacent lots of such owner constituting the same premises, for the amount due to him for such material, fixtures, apparatus, machinery, services or labor, and interest from the date the same is due."

The very gist of the petitioner's case, as made by the averment, is that it contracted to furnish the materials for which it claims a lien with parties (Kane and Meyer) whom the owner (J. Russell Jones) had "authorized or knowingly permitted to improve" the premises. If that allegation is not either admitted or proved by the petitioner, its case must fail; but, if admitted by the answer or established by the evidence, then, by the plain provisions of the statute, its right to a lien is established to the whole of the premises, to the same extent as though the agreement under which the lumber was furnished had been made with the owner himself. Conceding there was upon the hearing an issue of fact as to whether there was such authority or permission, as coun

sel for appellees assume there was, and also. conceding that without a bill of exceptions or certificate of evidence we are not to presume, in support of the decree, that evidence was heard outside of the contract of leasing between the lessor and lessees, and looking to that contract alone, the petition is, in our opinion, amply sustained.

We understand counsel for appellees to contend that by the terms of the lease Kane and Meyer became original contractors for the erection of the buildings and the improvements placed upon the lots, and that the lumber company was, at most, but a subcontractor under them. Extended arguments are submitted on either side of these propositions, but we regard them of very easy solution. It cannot be seriously claimed that under the agreement the lessees contracted with Jones to furnish materials or perform any of the labor or services named in the foregoing section of the statute, by the doing of which they would, by that section, be known as "a contractor." The statute is, as its title indicates, for the security of mechanics and those who furnish material for buildings, etc., therein named. Agreements made under its provisions are known in the law as building contracts, sometimes termed "working contracts." The clause in the lease which obligates the lessees to erect improvements upon the leased premises is in no sense a building contract. That clause means no more than that by the terms of the lease the tenants are to cause to be made such improvements as the landlord shall approve of, not to exceed in value $6,000, that sum to be repaid by the landlord, either in the use of the premises, or in money, if he should decide to cut short the term of five years, the improvements to be a part of the real estate, and to belong to him.

A contractor has been defined to be "one who, as an independent business, undertakes to do specific jobs of work without submitting himself to control as to the petty details." 3 Am. & Eng. Enc. Law, 822. It would scarcely be contended that under the provisions of our statute there could be such a thing as a subcontractor's lien, unless there existed a lien in favor of an original contractor, and we assume that no one would contend that Kane and Meyer, under their contract with Jones, could have enforced a lien against the leased property for any improvements placed upon it by them under this agreement. Similar contracts have been before the courts in proceedings to enforce mechanics' liens, and have, without exception, so far as we are advised, been held to amount to authority or consent from the owner to a vendee or lessee to make the improvements, and, in the absence of some stipulation in the agreement to the contrary, to give a lien upon the interest of the owner for materials furnished or labor performed under contracts with the vendee or les

see. In fact, it is impossible to see how it can reasonably be said that one who agrees with another that he shall place buildings or other improvements upon certain property does not thereby "authorize or knowingly permit" the other to improve that property.

The case of Henderson v. Connelly, 123 Ill. 98, 14 N. E. 1, was one in which the Hendersons sold to one Sharp certain premises, the former agreeing that, when Sharp should have expended $325 in the erection of a dwelling house on the premises, they would advance him, as the progress of the building justified in their opinion, $S75 to aid in its completion. Sharp contracted with Connelly to do certain work upon the building, which he did. Sharp having failed to comply with his contract of purchase, the Hendersons took possession of the property, and completed the house. Connelly sought to enforce a lien upon the premises for the labor performed by him, and the Hendersons resisted that claim. The decree was in favor of the petitioner, and directed the master to sell the property, and, after paying the costs, to pay, first, the amount due the petitioner, and the surplus to the Hendersons. On appeal, the latter insisted the decree was erroneous, in that it did not give them priority, at all events, for the contract price of the property; relying on Hickox v. Greenwood, 94 Ill. 268. Holding the position not well taken, and the case relied on not in point, we said (page 102, 123 Ill., page 3, 14 N. E.): "Here it was understood in the contract of sale between the vendors and purchaser that the latter should go on and build upon the premises, and, for the purpose of a consummation of this understanding, a clause was inserted in the contract of sale by which the vendors agreed to advance the purchaser $875 to assist him in the erection of a building on the premises, as the building progressed. The only reasonable and fair construction to be placed on this clause of the contract is that the purchaser was authorized and empowered by the vendors to enter into contracts with builders to furnish material and erect a building on the premises to which they held the legal title." The doctrine of this case is recognized as being applicable to cases of leasing as well as sales in Williams v. Vanderbilt, 145 Ill. 238, 34 N. E. 476, where we said: "Where a lessor agrees to pay to the lessee a gross sum towards the erection of a house on the demised premises, the estate of the lessor is bound by the mechanic's lien,"-citing Leiby v. Wilson, 40 Pa. St. 63, and Boteler v. Espen, 99 Pa. St. 313.

In Lumber Co. v. Nelson, 71 Mo. App. 110, the case is stated and decided as follows: "One of the stipulations in the lease from Nelson was that the lessees should expend $20,000 in making improvements upon the leased premises, according to plans and specifications which had been agreed to.

These improvements were to become the property of the lessor at the termination of the lease. In this state of the evidence it may be truthfully said the improvements on the Nelson lot, and the material necessary to make them, were made and furnished by his consent and for his benefit. He not only consented to them, but contracted with his lessees for them. The improvements were made and the material furnished under a contract authorized by him, and he must be held to have subjected his title in his lot to the plaintiff's lien, if the lien is otherwise valid. O'Leary v. Roe, 45 Mo. App. 567; Hall v. Parker, 94 Pa. St. 109; Barclay v. Wainright, 86 Pa. St. 191; Burkitt v. Harper, 79 N. Y. 273; Hill v. Gill, 40 Minn. 441, 42 N. W. 294; Henderson v. Connelly, 123 Ill. 98, 14 N. E. 1." This we regard as a clear statement of the law, even under statutes without the provision in our act of 1895, "or with one whom such owner has authorized or knowingly permitted to improve." etc., and fully sustained by the authorities cited and numerous other decisions. See Schmalz v. Mead, 125 N. Y. 188, 26 N. E. 251, and cases cited; Miller v. Mead, 127 N. Y. 544, 28 N. E. 387, 13 L. R. A. 701; Burkitt v. Harper, 79 N. Y. 273; McCue v. Whitwell, 156 Mass. 205, 30 N. E. 1134.

It is urged, however, that the authority given by this lease was, at most, but a limited or qualified authority, and therefore not within the meaning of the statute. This po sition is based upon that part of the lease which says that for the cost of any of the buildings or improvements which may be made by the parties of the second part they "shall permit no mechanics' liens to attach to said premises," etc. Counsel construes this language to mean that the tenants had only authority to make improvements by stipulating, in any contracts therefor, that no mechanics' liens should attach. But with this construction we cannot agree. The clause, taken as a whole, does contemplate that a contract may be made which would be binding between a mechanic or material man and the owner authorizing a lien, but requires, as between himself and the lessees, that they shall not permit the lien to attach; that is, that they shall pay off the liabilities, and thereby prevent the enforcement of a lien. The latter part of the clause clearly shows that the owner anticipated that that part of the agreement might not be performed by them, and he therefore protected himself from loss by reserving the right to declare a forfeiture and take the property. It seems to us very clear that, under the terms of this lease, the rights of the petitioner must be held to be the same, in every respect, as though the contract for the building material had been made directly with appellee Jones. In this view, the lien attaches to the whole of the property,-the owner's title. It is his contract, not that of the lessees, and he gets the full benefit of it. Both by the terms of

the contract and the statute, the petitioner is entitled to interest on this claim from the time it became due.

In our opinion, the decree of the circuit court is in conformity with the law and facts of the case. The appellate court erred in reversing the decree, and its judgment will accordingly be reversed, and the decree of the circuit court will be affirmed. The cause will be remanded to the latter court, with directions to carry into effect its decree. Reversed and remanded.

BOLDENWICK et al. v. CAHILL. (Supreme Court of Illinois. Oct. 19, 1900.) CONTRACTS-PROMISE TO ANSWER FOR DEBT OF ANOTHER-TRIAL-INSTRUCTIONS-APPEAL.

1. In an action to recover on defendant's promise to pay a debt due plaintiff on purchasing certain property from plaintiff's debtor, error in an instruction in assuming an indebtedness to plaintiff is cured by a subsequent instruction authorizing a finding for defendant unless at the time of such sale such 'party was indebted to plaintiff.

2. Instructions not supported by the evidence are properly refused.

3. In an action to recover on defendant's promise to pay a debt due plaintiff on purchasing property from his debtor, an instruction on the theory that the evidence must show an absolute sale by the debtor to defendant before the latter would be liable to plaintiff is properly refused, as plaintiff was entitled to recover if defendant agreed to pay the debtor's debt to plaintiff in consideration of the debtor's giving a bill of sale to secure a debt due defendant, where one count alleged generally a good consideration passing from the debtor to defendant.

Appeal from appellate court, First district. Action by Daniel Cahill against James W. Kee and another to recover on an alleged promise by defendants to pay an indebtedness of a third party to plaintiffs. From a judgment of the appellate court (86 Ill. App. 561) affirming a judgment for plaintiff, defendant James W. Kee appeals. On death of appellant, William Boldenwick and Paul Brauer, his administrators, were substituted as appellants. Affirmed.

Additional count filed by leave of court was as follows: "And whereas, James Cahill and Florien S. Young, partners under the name of Cahill & Young, were on, to wit, the 30th day of April, the owners of a certain restaurant, at, to wit, No. 35 Adams street, in the city of Chicago, together with a leasehold interest in said premises, and of the goods and chattels situated therein, and the said Cahill & Young on, to wit, the day last aforesaid, were indebted to the plaintiff in, to wit, the sum of eight thousand dollars ($8,000), and being so indebted the said Cahill & Young on, to wit, the day last aforesaid, sold and assigned and delivered to the defendants the said restaurant and leasehold and personal property, in part consideration whereof the said defendants assumed, and then and there undertook and agreed with the said Cahill

& Young, to pay the said sum of eight thousand dollars ($8,000) to the plaintiff as a part of the purchase price to be paid by them for said property, and the defendants became and were thereby indebted to the plaintiff on the day last aforesaid for the said sum, and, being so indebted, the said defendants on, to wit, the date last aforesaid, in the said county and state, undertook and then and there faithfully promised the said plaintiff well and truly to pay unto the said plaintiff the sum of money last mentioned when the said defendants should be thereunto afterwards requested. And whereas, also, one James Cahill and Florien S. Young, doing business under the name and style of Cahill & Young, and being the owners of a certain restaurant situated at No. 35 Adams street, in the city of Chicago, together with the leasehold interest in the said premises, and of the personal property situated therein, were indebted to the plaintiff in the sum of, to wit, eight thousand dollars, evidenced by their two promissory notes, dated April 20, 1891,one for two thousand dollars ($2,000) payable one year after date, together with interest at six per cent. per annum, and one for three thousand dollars ($3,000), payable two years after date, with interest at six per cent. per annum, and that said Cahill & Young, on, to wit, the date last aforesaid, assigned, sold and conveyed and delivered to the defendants herein the said restaurant, leasehold, and personal property, in consideration whereof the said defendants then and there undertook to pay as a part of the price thereof the said indebtedness to the said plaintiff, and then and there the said defendants became and were indebted to the said plaintiff in the said sum of eight thousand dollars, and in consideration thereof afterwards, to wit, on the date last aforesaid, and in the county and state aforesaid, undertook and then and there faithfully promised the said plaintiff well and truly to pay unto the said plaintiff the said sum of money whenever they should thereafterwards be so requested. And whereas, also, on, to wit, the date last aforesaid, in the county aforesaid, one James Cahill and Florien S. Young, co-partners under the name of Cahill & Young, were indebted to the plaintiff in the sum of, to wit, eight thousand dollars ($8,000), and, being so indebted, they entered into an agreement on, to wit, the day last aforesaid, with the defendants herein, in and by which said agreement the said defendants, for a consideration to them then and there in hand paid by the said Cahill & Young, undertook and promised to said Cahill & Young to pay to the plaintiff the sum of, to wit, eight thousand dollars, by means whereof the said defendants then and there became indebted to the said plaintiff in, to wit, the sum of eight thousand dollars, and, being so indebted, the said defendants then and there undertook and faithfully promised the plaintiff well and truly to pay unto the plaintiff the said sum of money whenever there

afterwards they should be so requested by | personal property in the restaurant from Ca

sald plaintiff. And whereas, also, afterwards, to wit, on the day last aforesaid, the said defendants, for a consideration in hand then paid to them by the plaintiff, undertook and agreed to pay to the plaintiff a further sum of, to wit, eight thousand dollars ($8,000), by means whereof the said defendants became and were indebted to the said plaintiff in, to wit, the said sum of money, and then and there the said defendants undertook and faithfully promised the said plaintiff well and truly to pay to the said plaintiff the said sum of money whenever thereafterwards they should be so requested. Nevertheless the said defendants, although often requested, etc., have not yet paid the several sums of money above mentioned, or any or either of them, or any part thereof, to the said plaintiff, but to pay the sum or any part thereof to the said plaintiff the said defendants have hitherto and altogether refused, and still do refuse, to the damage of the said plaintiff of eight thousand dollars; and therefore the said plaintiff brings suit," etc.

Jesse A. & Henry R. Baldwin, for appellant Kee. James S. Harlan, for appellees.

HAND, J. This is an appeal by James W. Kee from the judgment of the branch appellate court for the First district affirming the judgment of the circuit court of Cook county against James W. Kee and Joseph M. Omo in favor of Daniel Cahill for the sum of $6,909.73. James W. Kee died March 21, 1900, and, his death having been suggested, William Boldenwick and Paul Brauer, administrators of the estate of James W. Kee, deceased, have been substituted as appellants. The declaration contains several counts, alleging, in various ways, that the defendants, on the 30th day of April, 1892, purchased from James Cahill and Florien S. Young, partners, etc., a certain restaurant and leasehold interest at 35 Adams street, in the city of Chicago; that at the time of such sale the firm of Cahill & Young were indebted to the plaintiff in the sum of $5,000 and interest, and that as a part of the consideration of such purchase the defendants agreed to pay the indebtedness of Cahill & Young to the plaintiff. The judgment of the branch appellate court has settled all controverted questions of fact adversely to the defendants.

The appellant complains of the giving of the following instruction, on the ground it assumes there was an indebtedness due to Daniel Cahill from the firm of Cahill & Young: (1) "The jury is instructed, as a matter of law, that a promise made upon a valuable consideration, from one person to another, to pay a sum of money to a third person, is valid and binding, and can be enforced by said third person in his own name. In this case, if the jury believe, from the evidence, that the defendants, as charged in the declaration, purchased the leasehold and

hill & Young, and as a part of the purchase price therefor agreed and undertook to pay the indebtedness due to Daniel Cahill from the firm of Cahill & Young, then the jury must find the issues for the plaintiff for the sum remaining unpaid or due at the time of making the said agreement, and the interest upon it at the rate of five per cent." At the instance of the defendants the court gave the following instruction: ((3) "The jury are instructed that if you find from the evidence that at the time of the execution and delivery of the papers offered in evidence, and called a 'bill of sale,'. it was the intention of the firm of Cahill & Young and of James W. Kee and Joseph M. Omo (the parties thereto) that such acts of execution and delivery were an absolute sale, then, unless you further find from the evidence that at the said time the said firm of Cahill & Young were indebted to the plaintiff in the sum of $5,000 (or more), and that the said indebtedness was represented by the notes offered in evidence therein, and that the defendants herein then and there agreed to pay the said indebtedness and notes as a part of the purchase price of said sale, then your verdict must be for the defendants." This instruction informed the jury, although they might believe there was an absolute sale from Cahill & Young to the defendants, they should find for the defendants, unless they should further find, from the evidence, that at the time of such sale Cahill & Young were indebted to the plaintiff. The defect in the first instruction, if any, was cured by this instruction. An instruction is not to be regarded as misleading where the matter upon which it touches is fully and properly stated in another instruction. Railway Co. v. Ingraham, 131 Ill. 659, 23 N. E. 350; Ray v. Williams, 112 Ill. 91; City of Lanark v. Dougherty, 153 Ill. 163, 38 N. E. 892. It is also insisted that the court erred in refusing to give the following instructions: (6) "The jury are instructed, in behalf of the defendant Omo, to disregard all the testimony offered regarding alleged admissions, promises, or agreements, if any, made by the defendant Kee when the defendant Omo was not present." (7) "The jury are instructed to disregard all the testimony offered herein regarding or concerning any alleged admissions, promises, or agreements, if any, by either of the defendants herein when the other defendant was not present, made prior to the time of the execution of the paper entitled 'bill of sale,' offered in evidence herein." (9) "The jury are instructed that if you believe from the evidence that at the time of the execution and delivery of the paper offered in evidence and called a 'bill of sale' it was the intention of James Cahill, Florien S. Young, James W. Kee, and Joseph Omo (the parties thereto) that such acts of execution and delivery were not an absolute sale, but were for the

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