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D.d. Kennedy, Inc. v. Lake Petersburg Ass'n

DECEMBER 21, 1964.

D.D. KENNEDY, INC., PLAINTIFF-APPELLANT,

v.

LAKE PETERSBURG ASSOCIATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Menard County; the Hon. MAURICE E. BARNES, Judge, presiding. Affirmed.

PER CURIAM.

This is an appeal by the plaintiff, D.D. Kennedy, Inc., from an Order of the Circuit Court of Menard County sustaining the motion of the defendant, Lake Petersburg Association, to strike the amended complaint, striking the same, and entering a final judgment for the defendant, the plaintiff having elected to stand on its amended complaint. The plaintiff, as a subcontractor, sought to impress a mechanic's lien upon certain real estate of the defendant in Menard County and upon any funds in the hands of the defendant belonging to the general contractor concerned, one Leslie Ankrom, doing business as Ankrom Construction Company, another defendant, under the Mechanics' Liens Act, ch 82 Ill. Rev Stats 1961, pars 1 ff. The only question is whether the plaintiff, under its amended complaint, is entitled to a mechanic's lien under the statute concerned.

The plaintiff's amended complaint alleges, in substance, that the defendant Lake Petersburg Association, an Illinois not for profit corporation, on July 1, 1961, prior thereto, and now, was and is the owner of certain described real estate in Menard County; the plaintiff is, and at the times hereinafter stated was, engaged in the business of selling and renting earth moving and road building equipment, apparatus, and machinery; the defendant Leslie Ankrom, doing business as Ankrom Construction Company, at the times mentioned was a general contractor, and on or about July 11, 1961 that defendant entered into a written contract with the defendant Lake Petersburg Association, the owner of the real estate concerned, by which the defendant Ankrom agreed to provide and furnish all labor, materials, necessary tools, machinery, apparatus and equipment to perform and complete the improvements of dam and spillway, clearance of reservoir area and dredging of lake inlets for and upon the real estate concerned, at certain unit prices according to the units finished, in accordance with said contract, a copy of which is made a part of the complaint as Exhibit A; in order to carry out his contract the general contractor on or about July 12, 1961 entered into a written contract with the plaintiff by which the plaintiff agreed to rent and furnish certain machinery, equipment, apparatus, and labor, namely, five Allis-Chalmers Model TS-360 Motor Scrapers, and the services of a man for two weeks to start the same, in the improvement upon the real estate concerned, at the price or rental of $1,700 per month for each motor scraper, or a total monthly rental of $8,500 from delivery at the job site until returned to the plaintiff, plus transportation charges, a copy of which contract is made a part of the complaint as exhibit B; in pursuance of that contract the plaintiff furnished all the machinery, equipment, apparatus, services, and labor required by it and complied with it, the plaintiff completed the furnishing thereof on May 31, 1962 and on that day performance of that contract was completed; during the performance of that contract the plaintiff at the instance of Leslie Ankrom (the general contractor) furnished certain goods, etc., being certain repair parts used in repairing and maintaining the motor scrapers, for use in connection with the improvement of the real estate concerned, reasonably worth $776.01; the last repair parts furnished by way of extras were furnished May 21, 1962 and on that date the furnishing of such extras was completed; all of the machinery, equipment, apparatus, services, labor, and repair parts furnished by the plaintiff were delivered to and accepted for the improvement of said real estate, and the operation thereof constituted a permanent, valuable improvement thereof, and the major improvement to be performed and performed by the contractor was the construction of an earthen dam to create an artificial lake in which construction the operations of filling and excavating the earth on the real estate was the most substantial and important portion of the performance of the contract between the contractor and owner; the said filling and excavating was performed in substantial measure through use of the motor scrapers by the contractor, and as a result the useful life of such machinery after such use was greatly lessened so that such machinery was consumed in part through their use in the permanent improvement of such real estate; the motor scrapers were used for 138 working days during construction of the improvements, ending May 31, 1962, and the reasonable value for the services of each of the five motor scrapers was $77 per day so that the total reasonable value for the services thereof was $53,130; the plaintiff has received certain payments on account, — (totaling $13,300), — on May 31, 1962 $39,830 remained due, on May 21, 1962 there became due $776.01 for the extras, the final payment was due May 31, 1962, there is now due $40,606.01, with interest from May 31, 1962, and by reason of the nonpayment thereof the plaintiff is entitled to and claims a mechanic's lien on the real estate for such; on June 16, 1962 the plaintiff delivered to the defendant, Lake Petersburg Association, the owner, a notice of claim for lien, a copy being made a part of the complaint as exhibit C, and then or subsequently the owner was indebted to the defendant Leslie Ankrom (the general contractor) in excess of that due the plaintiff by Ankrom; and on September 25, 1962 the plaintiff filed a claim for lien with the Clerk of the Circuit Court, Menard County, a copy being made a part of the complaint as exhibit D. The prayer for relief was that an accounting be had as to the amount due the plaintiff, the plaintiff be decreed entitled to a mechanic's lien on the real estate for the amount found due, a receiver be appointed for the real estate, the defendants be decreed to pay the plaintiff the amount found due, in default of payment the real estate be sold to satisfy such amount, in case of sale, and failure to redeem, the defendants etc. be barred and foreclosed of all right or equity of redemption, and for other appropriate relief.

The alleged copy of the contract of July 11, 1961 between the defendant, Leslie Ankrom, doing business as Ankrom Construction Company, the general contractor, and the defendant, Lake Petersburg Association, the owner, exhibit A to the amended complaint, provided, in part, as follows:

"ARTICLE 1. SCOPE OF WORK — The CONTRACTOR shall perform everything required to be performed and shall provide and furnish all of the labor, materials, necessary tools, expendable equipment, and all of the utility and transportation services required to perform and complete the improvement of dam and spillway, clearing reservoir area, and dredging lake inlets of the OWNER, all in strict accordance with the Contract Documents hereinafter enumerated in Article V. . . ."

"ARTICLE II. THE CONTRACT PRICE — The OWNER shall pay the CONTRACTOR for the performance of this Contract, subject to any additions or deductions provided herein, the Contract price computed as follows:

"The aggregate sum of the following accepted unit items in the quantities and at the unit prices shown, it being understood that the quantities of the several items are approximate only and payments will be made on the actual measured quantities in place, at the unit prices shown, the OWNER reserving the right to increase or decrease the scope of the work within the respective items shown, the said unit prices to apply for additional or lesser quantities, including all labor, materials, and expendable equipment of every kind and nature necessary to construct, install and perform the same, complete in place sufficient for the purpose for which such item is intended and that the aggregate of all such items will constitute a complete inter-connected whole installation sufficient in all respects to accomplish the purpose for which the same was intended as per the plans and specifications."

Following which in that alleged contract is a table of "Accepted Unit Items" for "Earth and Spillway" and a "Schedule of Prices," listing 11 items by description, quantity, unit, unit price, and extended price, — being excavation (waste), earth excavation and embankment, filter blanket, gravel cushion for rip rap, dumped rip rap, spillway, top soil, seeding and mulching, clearing and stripping dam site, clearing reservoir area, and earthwork for lengthening, widening and deepening inlets.

The alleged copy of the agreement of July 12, 1961 between the plaintiff, D.D. Kennedy, Inc., the alleged subcontractor, and the defendant, Leslie Ankrom etc., the general contractor, exhibit B to the amended complaint provided in full, as follows:

"D.D. KENNEDY, INC. Manheim Road at Madison Street P.O. Box 177, Bellwood, Illinois `Chicago Headquarters for Earthmoving and Road Building Equipment'

RENTAL AGREEMENT

Date July 12, 1961

Ankrom Construction Co. Route 4 Jacksonville, Illinois

WE PROPOSE TO rent you the following equipment subject to terms and conditions hereinafter stated:

5-Used Allis-Chalmers Model TS-360 ...


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