Appeal from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding. Affirmed as to judgment on Counts
I, II, III and IV, reversed and remanded as to Count V with
Rehearing denied March 12, 1969.
Plaintiff's complaint in five counts asserting claims for lien and right to recover for materials furnished on a construction contract was dismissed for failure to state a cause of action. While the motions to dismiss made by various defendants assert multiple defects in the complaint, there is no indication in the record of the grounds on which the trial court sustained the motions. The question then for this court is whether any of the counts of the complaint, taking the allegations and proper inferences from them as true, state a cause of action. Substantially the same basic facts are alleged for each count and arise under the following situation.
On June 15, 1965, defendants, John A. Snyder and Doris L. Snyder, as owners of real estate, entered into a contract with defendant, G.A.C. Construction Company, to construct an apartment building on the premises for the sum of $92,600 to be paid by stated completion stages. The owners authorized defendant, Security Savings and Loan Association, to make payments due under the contract after inspection to determine performance, provided that before any payments were made to the contractor, the contractor should furnish an affidavit in accordance with section 5 of the Mechanics' Lien Act setting forth the names of parties furnishing labor and material and the amount due or to become due each. The contract also required such an affidavit from the contractor prior to final payment.
On March 1, 1966, defendants, John A. Snyder and Doris Snyder, entered into an escrow agreement with Arthur M. Wells and defendants, Verle G. Dollahan and Helen Jane Dollahan, which agreement recited that the Snyders had entered into an agreement to sell the premises to Wells and Wells had entered into an agreement to sell the premises to the Dollahans and that Wells had refused to pay the consideration until certain items of completion were performed and until all liens of record or otherwise claimed were released or otherwise satisfied. A fund was deposited with the Millikin Trust Company which was to be disbursed to Security Savings and Loan Association, as mortgagee, and for satisfaction of liens in accordance with written directions from named attorneys.
The contractor entered into a subcontract for plumbing work with Nichols and Camp, a partnership, and Nichols and Camp purchased plumbing, heating and airconditioning materials from plaintiff, Capitol Plumbing and Heating Supply Co. These materials of the value of $4,631.86 were delivered to and used in the apartment premises between September, 1965, and November 3, 1965.
On November 3, 1965, certain materials, invoiced as sold to Nichols and Camp, in the amount of $838.93, were delivered to an agent of G.A.C. Construction Company and were paid for by said agent in exchange for a waiver of lien executed by Capitol Plumbing and Heating Supply Company. The waiver described the real estate and further provided:
"NOW THEREFORE, Know All Men By These Presents that the undersigned for and in consideration of Eight Hundred Thirty-Eight and 93/100 Dollars ($838.93), the receipt whereof is hereby acknowledged, do hereby waive and release any and all lien, or claim of right of lien on said above described building and premises under `An Act to Revise the Law in relation to Mechanics Liens approved May 18, 1903' and in force July 1, 1903 and all the lien laws of the State of Illinois on account of labor or materials, or both, furnished or which may be furnished by the undersigned to or on account of said labor and for materials or both for said building or premises.
"And for above stated consideration, the undersigned further declares on oath that all laborers, material suppliers, and subcontractors, if any, used for this portion of the construction have been paid in full."
On November 19, 1965, pursuant to two invoices showing a sale to G.A. Clark, there was delivered to defendant John A. Snyder material in the amount of $85.24 which Snyder paid for with a check drawn by Security Savings and Loan Association in exchange for a lien waiver which recited a consideration of $85.24 and contained waiver provisions similar to the one above recited.
On November 30, 1965, plaintiff served defendants John A. Snyder and Doris L. Snyder with a subcontractor's notice of lien stating that materials in the amount of $4,631.86 had been furnished to the contractor, G.A. Clark, through the subcontractor, Nichols and Camp, by plaintiff.
The original complaint for foreclosure of such lien was filed March 17, 1966, and was dismissed on motion for summary judgment which motion set forth the lien waivers above described.
The present second amended complaint of five counts was filed June 19, 1967.
Count II seeks to make the original construction contract a third-party beneficiary contract with plaintiff as the third-party beneficiary and makes the original owners, John A. Snyder and Doris Snyder, the contractor, G.A.C. Construction Company and Security Savings and Loan Association of Decatur defendants. Security Federal ...