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Castle Concrete Co. v. Fleetwood Associates

FEBRUARY 26, 1971.

CASTLE CONCRETE CO., PLAINTIFF-APPELLANT,

v.

FLEETWOOD ASSOCIATES, INC. ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County, the Hon. JAMES A. ZAFIRATOS, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

The cause was tried to the court upon an agreed statement of facts. The matter concerns three principal parties, the plaintiff subcontractor Castle Concrete Co., hereinafter called "Subcontractor", the defendant general contractor Fleetwood Associates, hereinafter called "General Contractor", and the defendant legal title holder the American National Bank & Trust Company of Chicago as Trustee and the sole beneficiary thereunder, Arthur Zaltzman, hereinafter called "Landowner". The Subcontractor sought to impress the property with a mechanics lien based upon material and labor supplied in excess of an amount specified by contract between the General Contractor and the Subcontractor. The court held that the plaintiff could not assert a mechanics lien upon the property, and entered judgment, from which plaintiff appeals.

The agreed statement of facts upon which the court based its holding is as follows:

"1. That the real estate involved in this cause upon which the improvement in issue was erected, is the property commonly known as 3040 West Devon Avenue, Chicago, Illinois.

2. That the legal title holder to the property in question, at all times relevant to the consideration of the issues in ths case, was Amercan National Bank & Trust Company of Chicago, as Trustee under Trust Agreement dated March 5, 1954, Trust No. 10270, the sole beneficiary thereunder being Arthur Zaltzman.

3. That with respect to the construction of an improvement upon the subject real estate Fleetwood Associates, Inc. acted as general contractor pursuant to a written contract of the Standard Form of Agreement between Owner and Contractor, American Institute of Architects Form No. A 107, which agreement was dated September 25, 1967 between the American National Bank of Chicago As Trustee Under Trust No. 10270 by Arthur Zaltzman, sole beneficiary thereunder, as Owner, and Fleetwood Associates, Inc., as Contractor.

4. That Fleetwood Associates, Inc. and the plaintiff, Castle Concrete Co., entered into a written contract on October 23, 1967, whereunder Castle Concrete Co. was to perform and provide certain labor and materials in connection with concrete work at the subject property, under the terms of which contract the total sum to be received by Castle Concrete Co. was $8,600.00, payable $3,200.00 upon completion of foundation, $4,500.00 upon completion of slab work and $900.00 upon completion of any remaining work.

5. That Castle Concrete Co., in addition to erecting and construcing foundations of a depth of 42", being the frost wall depth at the site in question, recommended to an officer of Fleetwood Associates, Inc. that a deeper foundation be constructed, and on October 30, 1967, November 6, 1967 and November 8, 1967, did pour and frame additional concrete, over and above the quantity and height of foundation concrete, set forth in the architect's plans and specifications for the site in question.

6. That in furtherance of the direction received by Castle Concrete Co. from the duly authorized agent of Fleetwood Associates, Inc., Castle Concrete Co. performed and supplied the "extras" and immediately subsequent to performing the work in question, constituting the extras, requested Fleetwood Associates, Inc. to execute written change orders which were forwarded to Fleetwood Associates, Inc. by Castle Concrete Co.

7. That the three written change orders submitted and forwarded to Fleetwood Associates, Inc. by Castle Concrete Co., were not executed by Fleetwood Associates, Inc., nor returned to Castle Concrete Co.

8. That at no time prior to the performance of the "extras", which are the subject matter of this proceeding, did Castle Concrete Co. receive any authorization or direction, in any form whatsoever, with respect to said extras, from the American National Bank and Trust Company of Chicago, as Trustee, or Arthur Zaltzman, nor did the American National Bank, as Trustee, or Arthur Zaltzman have any knowledge of the performance by plaintiff of the alleged extras.

9. That the three written change orders submitted by Castle Concrete Co. to Fleetwood Associates, Inc. dated November 1, 6 and 14, 1967 respectively, are in the amounts of $331.10, $254.10 and $745.00 respectively, thereby totaling $1,330.20."

The Subcontractor urges that the court below erred in several particulars. The Subcontractor asserts that a subcontractor is not bound by a provision in a construction contract which bars the assertion of a mechanics lien unless he has actual notice of that provision or unless the contract is recorded, that a subcontractor may assert a valid mechanics lien after the general contractor has executed the primary contract, that property will be subjected to a mechanics lien in favor of one who performs work when a contract is entered into between the contractor and one who the owner knowingly permits to improve the premises and finally that a job superintendent has authority to order extra work thereby subjecting the property improved to a mechanics lien without the owner of the premises having been given notice.

• 1 When there is a no dispute as to the facts but only as to the judgment that was entered upon the agreed facts, the only question remaining for the reviewing Court is whether or not the facts as stipulated, sustain the judgment of the trial court. (Saltsman v. Springfield Life Insurance Co. (1929), 254 Ill. App. 440.) The contract between the owners and general contractor referred to in the statement of facts provided ...


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