Murphy v. Cicero Lumber Co.

Mr. Justice Sears delivered the opinion of the court.

The learned counsel for plaintiffs in error urge as grounds for a reversal of the decree:

First: That the contract between Kruschinsky and defendant in error was a written contract, and that there- . fore the lien notice here is insufficient, in that it did not contain a copy of this sub-contract. Second: That the defendant in error was not entitled to any payment for its lumber until the roof of the building was completed, and that inasmuch as it refused to deliver more lumber before the roof was finished, it broke its contract and can not assert its lien. Third : That defendant in error is not entitled to a lien because no time was fixed in its contract with Kruschinsky within which the lumber was to be delivered and paid for. Fourth: That there is no evidence that any amount was due to Kruschinsky from plaintiff in error Murphy when the lien notice was served, or thereafter. Fifth: That the decree is erroneous, in that it allows interest on the amount found to have been due. Sixth : That there was error in allowinglfjlOO as fees of the master in chancery who heard the evidence and reported the same with his conclusions to the court.

The contract between defendant in error and Kruschinsky can not be treated as a contract in writing. The estimate in writing and the acceptance of the same did not supply all the essential elements of a contract. ¡No other contracting party is mentioned in the estimate save Kruschinsky, and he alone signed it. Extrinsic evidence would be necessary to establish a valid contract between defendant in error and Kruschinsky. Therefore it is to be treated as an oral contract. The R. P. & F. Conductors’ B. Ass’n v. Loomis, 142 Ill. 560 . In the decision of that case the Supreme Court said:

“ A written contract is one which in all its terms is in writing. A contract partly in writing and partly oral is, in legal effect, an oral contract. * * * A contract can not be said to be in writing unless the parties thereto, as well as the terms and provisions thereof, can be ascertained from the instrument itself.”

It can not, we think, be held that the limitation in the contract between Kruschinsky and plaintiff in error, viz., that no payment should be made until the roof was on the building, applied as well to the contract between Kruschinsky and defendant in error.

There was a conflict in the evidence as to whether any one representing defendant in error ever saw or knew of this condition in plaintiff in error’s contract, and the evidence is sufficient to sustain the finding of the master that by the agreement between Kruschinsky and defendant in error the latter was entitled to payment as the work progressed and the lumber -was delivered.

The evidence does not sustain the finding of the master to the effect that it was agreed by Kruschinsky and defendant in error that the lumber contracted for was to be delivered within one year. There is no evidence as to any agreement whatever as to the time of delivery. But this deficiency in the evidence is made a ground of defense for the first time in this court. Plaintiff in error Murphy did not rely upoii it before the master or in the Superior Court. If the copy of objections filed with the affidavit of Mr. Allee be treated as properly in the record and as having been presented to the master, still the difficulty remains that no one of these objections points out this deficiency in the proof. It is the settled rule in this State that objections to a master’s report must point out the ground of objection specifically. There is no one of these objections which points out specifically or otherwise that the evidence is lacking in this respect.

The evidence is not definite as to the time when payments were made to Kruschinsky by plaintiff in error Murphy. It is clear that only $105 had been paid when the. lien notices were served. After that time plaintiff in error Murphy “ became responsible to said Kruschinsky and sub-contractors on account of the contract to the extent of $1,200.” This is admitted by the answer of plaintiffs in error. Plaintiff in error Murphy did not disclose by his evidence what payments had been made after the lien notices were served. Therefore, plaintiff in error Murphy, after the lien notice, became liable under the contract for an amount of the contract price more than sufficient to cover the claim here enforced. We are of opinion that the allowance of interest was proper under the provisions of the act providing for mechanic’s liens. The statute expressly provides therefor. Sec. 22, Mechanic’s Lien Act, 36, Chap. 82, R. S. It is complained that the sum of $100 is an excessive amount to be taxed as the fees of the master in chancery for the taking of the evidence and the making of the report herein. But it does not appear that this sum has been taxed as costs. It only appears that at the conclusion of his report the master has noted, “ Master’s fees, $100,” which would indicate that the master desired that amount to be taxed as his fees. If the Superior Court shall hereafter tax an amount to be allowed as master’s fees as part of the costs, counsel for plaintiffs in error can interpose any objection they may have to such allowance. The fact that two lien notices were filed is unimportant.

It is suggested by counsel for defendant in error that inasmuch as it does not appear that objections were filed before the master and considered by him, except as shown by the affidavit referred to, and since the court below did not pass upon any exceptions to the master’s report, therefore we are now precluded from passing upon 'the various points urged by the plaintiff in error and above considered by us. But inasmuch as the decree must be sustained upon a consideration of all the grounds presented by counsel for plaintiffs in error, it is unnecessary to pass upon this .condition of the record as to objections before the master and exceptions to the master’s report, as a further ground for affirming the decree. The decree is affirmed.