Fish v. Stubbings

Citations

• 65 Ill. 492

Syllabus

<p>1. Express contract—as contradistinguished from, an implied one. A contract for the building of a house, where the builder is to do the work and furnish .the materials therefor at a stipulated price, one-half to be paid on completion of the work and the residue on or before a day following, and where the work was commenced and progressed with the knowledge and assent of the owner, but was not completed until after the time fixed for the last payment, on account of being hindered by the owner, is an express contract as contradistinguished from an implied one.</p> <p>2. Mechanic’s lien—time for completion of work necessary under special contract. Where work is performed, in the erection of a building, under a special contract, as contradistinguished from an implied contract, to entitle the creditor to a lien, it is essential that a time should be agreed upon for the completion of the work.</p> <p>3. Same—substantial peiformance of contract sufficient. To entitle the petitioner for a mechanic’s lien to relief, a substantial performance of the contract will be sufficient.</p> <p>4. Answer in chancery—as evidence when under oath. Where an answer in chancery is required to be made under oath, so far as it is responsive to the bill it is testimony for the defendant, and can only be overcome by two witnesses, or one witness and strong corroborating circumstances. As evidence, it can only be impeached in the same manner as oral testimony may be. Hence, it is error to instruct the jury to look with suspicion upon it, if they believe, from the evidence, that it was recklessly made.</p> <p>5. It is error for the court to instruct the jury that the sworn answer of a defendant to a petition for a mechanic’s lien might be regarded as of no greater weight than the evidence of the defendant, as the law makes such answer preponderate over the testimony of one witness.</p>