Industrial Roofing Co. v. Meek

Full title: Industrial Roofing Company, Trading as Construction Materials Company…

Court: Appellate Court of Illinois, Third District

Date published: Nov 3, 1941

312 Ill. App. 653 (Ill. App. Ct. 1941)

39 N.E.2d 57

Opinion

Gen. No. 9,234. (Abstract of Decision.)

Opinion filed November 3, 1941 Rehearing denied February 3, 1942

1. MECHANICS' LIENS, § 201^_ — scope of recovery by contractor. Upon foreclosure of mechanic's lien, building contractor who has substantially performed his contract is entitled to recover the contract price, plus the cost of extras, but less any necessary expenses incurred by the owners in fulfilling the terms of the contract.

_ See Callaghan's Illinois Digest, same topic and section number.

2. MECHANICS' LIENS, § 10^fn_ — defective performance caused by owner's change of plans as affecting contractor's right of recovery. Defects in performance of building contract which were caused by changes in the original plan at owner's instance cannot be made the basis of a claim that the contractor failed to perform his contract.

3. MECHANICS' LIENS, § 178^fn_ — burden of proving cost of remedying defects in performance of contract. In suit to foreclose mechanic's lien by building contractor, burden of proving cost of remedying defects in performance of contract rests not on contractor, but upon owner, and statement to contrary in Art Craft Re-Roofing Co. v. Williams, 264 Ill. App. 477, will not be followed.

4. MECHANICS' LIENS, § 183^fn_ — house construction contract as substantially performed. Building contract held substantially performed by contractor as against contention of owner that basement drain was attached to abandoned city drain and that as result basement became flooded, where contract made no provision for drain connections, contractor made the connection without charge, and owner insisted on depth to which basement was to be dug and indicated that she wished to avoid expense of digging to drainage connection with regular main; and as against further contention that joists were improperly spaced, where no damage was shown, and contract was ambiguous; and court properly foreclosed contractor's lien, after allowance for cost of remedying certain minor defects.

Appeal from Circuit Court of Coles county; Hon. CASPER PLATT, presiding.

Decree affirmed. Heard in this court at April term, 1941.

Harry I. Hannah and Thomas R. Figenbaum, for appellant;

Roger Fruin, of counsel;

Craig Craig, for appellee Industrial Roofing Co., and W.K. Kidwell, for appellee G.W. Piatt Sons.

Opinion by PRESIDING JUSTICE HAYES.

"Not to be published in full." Opinion filed November 3, 1941; rehearing denied February 3, 1942.