APPEAL from the Circuit Court of St. Clair County; the Hon.
THOMAS P. O'DONNELL, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Finis P. Ernest, Inc., d/b/a New Memphis Sand and Gravel, and The American Insurance Company, defendants, appeal from a judgment entered against them in the Circuit Court of St. Clair County.
The record establishes that on June 23, 1970, defendant Finis P. Ernest, Inc., d/b/a New Memphis Sand and Gravel (hereinafter referred to as Ernest), entered into a contract with the St. Clair Housing Authority for the sale of certain parcels of improved real estate by it to the Housing Authority. The improvements on the real estate were to consist of low income housing units, which were to be constructed by Ernest on real estate owned by it. As sections of housing units were completed, they were to be sold to the St. Clair Housing Authority. The parties referred to the work to be done as a "turnkey project," indicating that the units were to be completely finished and suitable for occupancy when transferred to the Housing Authority.
Plaintiff, A.J. Davinroy Plumbing and Heating, was employed as a subcontractor by Ernest to install the kitchen and bathroom fixtures and to perform the necessary interior plumbing for such fixtures. Davinroy installed kitchen and bathroom fixtures and plumbing in 86 units before leaving the job in August of 1973. Davinroy then filed a notice of lien with the St. Clair County Recorder of Deeds pursuant to section 23 of the act relating to mechanics' liens (Ill. Rev. Stat. 1977, ch. 82, par. 23) asserting that $75,000 was still due him for work performed at the housing project. Copies of the notice were mailed to Finis P. Ernest, Inc., New Memphis Sand and Gravel, Adpem Inc., the architect for the project, and the attorney for the St. Clair Housing Authority.
Davinroy subsequently filed a suit for accounting on December 19, 1973, against Ernest. The Housing Authority has never been a party to these proceedings; however, when it became aware of the lien and the lawsuit, the Housing Authority required Ernest to obtain a lien bond in the amount of $75,000 in order to protect itself from liability on the lien. Ernest obtained a lien bond for $75,000 from The American Insurance Company (hereinafter American); and when plaintiff eventually learned of such bond, he filed an amended complaint to add a count against American as surety on the bond. After a bench trial, judgments in the amount of $72,124.62 were entered in favor of Davinroy and against Ernest and American. From these judgments, Ernest and American appeal.
On appeal, defendants contend: (1) that plaintiff did not properly perfect a lien under section 23; (2) that plaintiff failed to prove the existence of a contract between plaintiff and Ernest; (3) that plaintiff failed to prove damages by competent and admissible evidence; (4) that plaintiff waived his rights to any and all liens or rights to liens; and (5) that plaintiff was not a third-party beneficiary or obligee of the lien bond and therefore not entitled to recover under the bond.
We would note initially that in his original complaint, plaintiff alleged that the notice of lien was filed on October 19, 1973, in Book 2354, Page 1947. However, the record discloses that on motion of plaintiff, paragraph 8 of counts I and III of the complaint was amended by interlineation to read as follows:
"8. That said plaintiff by virtue of Illinois Revised Statutes, Chapter 82, Section 23, on September 26, 1973, filed a `Notice of Lien Upon Public Funds', Book 2354, Page 1947, a copy of which is attached hereto and marked Exhibit A. Said Lien is in the amount of Seventy-Five Thousand Dollars ($75,000) representing the balance owed on said contract with said developer."
Section 23 of the act relating to mechanics' liens (Ill. Rev. Stat. 1973, ch. 82, par. 23), the statute under which this action was brought, provides in part:
"* * * Any person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor having a contract for public improvement for any county, township, school district, city or municipality in this State, shall have a lien on the money, bonds, or warrants due or to become due the contractor having a contract with such county, township, school district or municipality in this State under such contract: Provided, such person shall, before payment or delivery thereof is made to such contractor, notify the official or officials of the county, township, school district, city or municipality whose duty it is to pay such contractor of his claim by a written notice and furnish a copy of said notice at once to said contractor. And, provided further, that such lien shall attach only to that portion of such money, bonds, or warrants against which no voucher or other evidence of indebtedness has been issued and delivered to the contractor by or on behalf of the county, township, school district, city or municipality as the case may be at the time of such notice. The person so claiming a lien shall, within 60 days after filing such notice, commence proceedings by complaint for an accounting, making the contractor having a contract with the county, township, school district, city or municipality and the contractor to whom such material, apparatus, fixtures, machinery or labor was furnished, parties defendant, and shall within the same period notify the official or officials of the county, township, school district, city or municipality of the commencement of such suit by delivering to him or them a certified copy of the complaint filed. * * *"
Thus, section 23 of the act requires that notice of lien be given to the official or officials of the public entity whose duty it is to pay the contractor engaged in the construction of the public improvement. In the case at bar, plaintiff relies on the fact that he mailed a notice of the lien to the attorney for the St. Clair Housing Authority, and he contends that such mailing constitutes the required service of notice. The same section also provides that when a suit for accounting is commenced, the official or officials of the public entity shall be notified of its commencement by the delivery of a certified copy of the complaint within 60 days of filing the notice of lien. Plaintiff's attorney stated in an affidavit that he placed a certified copy of the complaint in the mail on December 19, 1973, 61 days from the date of filing of the notice of lien.
It is our opinion, based on the foregoing, that plaintiff has failed to comply with the procedural requirements of section 23 in three respects: (1) plaintiff failed to serve notice of the lien upon the official or officials of the St. Clair Housing Authority who were responsible for paying the contractor; (2) plaintiff's suit for accounting, having been filed more than 60 days after notice of the lien was given, was not timely filed; and (3) a certified copy of the complaint for accounting was not delivered to the proper officials of the Housing Authority within 60 days after the notice of lien was purported to have been given.
Section 23 of the act expressly requires that a suit for accounting be commenced within 60 days from the filing of the notice of lien. The record in the instant case reflects that the notice of lien was filed October 19, 1973, and that plaintiff's suit was filed on December 19, 1973. In accordance with the provisions of section 1.11 of the act relating to the construction of statutes (Ill. Rev. Stat. 1973, ch. 131, par. 1.11), 61 days expired between the date of filing the notice of lien to the date of filing of plaintiff's suit.
1 The evidence further establishes that the chairman and the executive director of the St. Clair Housing Authority were the officials authorized to disburse funds and make purchases. Here, plaintiff mailed a copy of the notice of lien to the attorney for the Housing Authority, who was not the proper party upon whom to serve the notice of lien. Under the provisions of section 23 of the act, the filing of the notice of lien with the recorder of deeds ...