APPEAL from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding.
MR. PRESIDING JUSTICE SMITH DELIVERED THE OPINION OF THE COURT:
This is an appeal from the denial by the trial court of two mechanics' liens, one filed by a subcontractor, Ted Bates, and the other filed by a materialman, Robert Midden. The appellants herein are intervening petitioners in a mechanic's lien foreclosure suit filed by Capital Plumbing & Heating Supply Company. It is the second appeal arising out of the same factual situation, the first being reported in Capital Plumbing & Heating v. Snyder, 104 Ill. App.2d 431.
A more comprehensive review of the facts is contained in the former opinion. The material facts for the purpose of this appeal are as follows: In June of 1965, Doris and John Snyder, the owners in joint tenancy of certain real estate, entered into a contract with GAC Construction Company for the construction on jointly-owned property of an apartment building for $92,600. GAC entered into an oral contract with Ted Bates, an appellant herein, in September of 1965 for certain ornamental metal work and air-conditioning stands for this apartment building. GAC also entered into a contract with Nichols and Camp for plumbing, heating and air-conditioning work. Nichols and Camp ordered and purchased from Robert Midden, the other appellant herein, during September to November of 1965, certain materials for the plumbing and heating work which Nichols and Camp had contracted to do with GAC.
Midden supplied the materials to Nichols and Camp between September 14 and October 18, 1965. These materials were installed on the premises owned by the Snyders. Between November 15 and November 18, 1965, Midden personally served a notice of lien addressed to both John A. Snyder and Doris L. Snyder on Doris L. Snyder.
Bates furnished and installed the air-conditioner stands and iron railings during the latter part of 1965 and early 1966. On January 3, 1966, he allegedly completed the work by going out to the construction site and installing a railing and painting some of the other rails. On March 4, 1966, Bates personally served a notice of lien on Doris L. Snyder. This notice of lien was directed to both John A. Snyder and Doris L. Snyder.
At the time of entering into a contract with GAC Construction Company, the Snyders had entered into a construction loan with Security Federal Savings of Decatur. Admitted into evidence is a payout record on this loan showing the dates and the parties to whom the payouts were made. These records show that as of November 15, 1965, the payouts on this construction loan amounted to approximately $62,000. They also show that subsequent to November 15, there were payouts from this fund of approximately $32,000 to $33,000 made to the general contractors, subcontractors and owners. As of March 4, 1966, the records show that the payments totaled $95,297.32 and there was only $382.00 left in the account; this amount was subsequently paid to Doris L. Snyder. From August 5 to September 27, 1965, there were four affidavits as required by Ill. Rev. Stat. 1965, ch. 82, par. 5, submitted to the Snyders by the contractor listing the subcontractors and materialmen and the amounts due to each. None of these affidavits listed either Bates or Midden.
The evidence also reveals that the Snyders ordered extras and that a contractor's lien was filed showing the cost of these extras as being being approximately $8,821.88. Testimony was offered as to some of these extras and as to the items testified to, the cost was placed at $5,573.31. The record also reveals that between March 4, 1966, and the time of the trial, the owners paid out an additional $4,276.22 to contractors on the job.
In March of 1966, the Snyders sold the premises to Verle and Helen Jane Dollahan, subject to an escrow agreement for the payment of valid liens.
The appellants herein are intervening petitioners in the mechanic's lien suit filed by Capital Plumbing & Heating Company. The matter went to hearing and after the hearing, the court ruled in favor of the owners, denying the validity of the liens. The trial court by its order found the following: (1) the service of the sixty-day subcontractors notice was effective only as to Doris L. Snyder and was ineffective as to the other joint tenant; (2) John A. Snyder and Doris L. Snyder have paid in excess of the price established in the contract between themselves and the general contractor; and (3) neither of the petitioners comes within the exceptions of Section 21 of the Mechanics' Liens Act. The court in its order did not, however, establish what the contract price was.
As a result of the aforesaid findings, the court entered judgment against each of the intervening petitioners, Midden and Bates and dismissed their petitions to foreclose their liens for want of equity.
It is contended on this appeal that the service upon Doris L. Snyder was ineffective to bind the interest of the other joint tenant, her husband. The applicable section of the Mechanics' Liens Act is Section 24 which provides:
"Sub-contractors, or party furnishing labor or materials * * * shall within sixty (60) days after the completion thereof * * * cause a written notice of his claim and the amount due or to become due thereunder, to be personally served on the owner or his agent or architect * * *." (Emphasis supplied.)
In regard to that section, it is stated in Love, Illinois Mechanics' Liens, 2dEd., on page 363:
"The courts have consistently held that notice must be handed to the owner or his ...