Or the 14th of February, 1874, James Powell and Charles Barrett filed a petition in the City Court of Aurora against Henry C. Stout and Mrs. A. C. Bogers to enforce a mechanic’s lien upon a lot of ground situated in that place, for furnishing a quantity of lumber and materials to Stout for the purpose of erecting a frame building upon the lot of which he was the owner.
The petition alleges that the petitioners, about the month of February, 1873, entered into a verbal contract with Stout to furnish him lumber and building material to construct a house upon this lot. That Stout was, by virtue of the agreement, to pay the petitioners for the materials to be furnished within five or six months from the time the same were delivered. That in pursuance of this agreement the petitioners did, from time to time, deliver to Stout a large amount of materials for the erection of the building, and that the same were delivered before July, 1873, and used in the construction of the house. That Stout was the owner of the premises, and had failed to pay for the lumber and materials furnished. That Mrs. A. 0. Rogers had a mortgage upon the premises subject to their lien, and prayed that she be made a party defendant to the petition.
In March, 1874, the defendants were defaulted and a decree taken against them, which recited that it appeared Stout was indebted to the petitioners in the sum of $733.90, and that the same, by the terms of the contract, became due on the first of July, 1873. That Mrs. Rogers had a mortgage on the premises, which was made after the materials were furnished by the petitioners, and was subject to their lien.
The decree further provided, that in case Stout should make default in the payment of the amount found due the petitioners within twenty days, the premises should be sold by the Master in Chancery of that Court, and the proceeds of the sale be applied first to the payment of the costs and debt in that proceeding, and the surplus, if any, to be paid over to the defendant Stout. Mrs. C. A. Rogers has brought the record of that proceeding to this court, and assigned several errors for reversing the decree of sale.
First: That the petition in the case is substantially defective, and should have been dismissed on the hearing.
As the decree will have to be reversed, and leave granted to amend the petition, it does not become necessary to decide all the points made. But it may, however, be observed that inasmuch as the petition undertakes to set out a verbal agreement made by the petitioners with the defendant Stout, in February, 1873, to furnish lumber and building materials to construct a house on lot FTo. 9, in the city of Aurora, and that Stout was, by virtue of the agreement, to pay the petitioners for the lumber and materials to be furnished within five or six months from the time the same were delivered; that this, according to the principle established in Fish v. Stubbins, 65 Ill. 492, and Powell et al. v. Webber et al. 79 Id. 134, was a special contract, and that, in such case, it became necessary to allege the time when the materials were, by the terms of it, to be delivered.
It is not to be disputed that under the present statute a party may declare upon an implied contract, or where the contract is partly expressed and partly implied. But there is no intimation in the contract set out in this case that any part of it was implied. Hence, the inference by all the rules of correct pleading would be that the pleader, after having stated a part of the agreement, and being silent as to the other portions of it, that the unstated portions were such as could not with safety be averred. Thus, in not stating the time, the inference would be that the period agreed upon for the delivery of the materials was beyond the time limited by the statute. Again, the petition alleges that the materials were delivered before July, 1873; how long before that time it does not appear. The decree, it is true, finds the fact to be that it was delivered long enough before July to make the payments, by the terms of the contract, due at that time.
By section 28 of the Revised Laws of 1874, in relation to liens, it is provided that “no creditor shall be allowed to enforce the lien created under the foregoing provisions as against, or to the prejudice of, any other creditor or any incumbrance, unless suit be instituted to enforce such lien within six months after the last payment for labor and materials shall have become due and payable.”
The decree recites that the court found from the evidence the amount due the petitioners for materials furnished to the defendant, Stout, by the terms of the contract, became payable on the first day of July, 1873, and also that the plaintiff in error held a mortgage upon the premises described in the petition, but that it was subject to the lien of the petitioners. This was certainly an erroneous conclusion, for the statute is very explicit that such a lien cannot be enforced against any incumbrance unless suit is brought within six months after the last payment becomes due. By this decree it appears that the payments were all due on the first of July, 1873, and suit was not commenced until the 14th of February, 1874, more than seven months afterward. That Mrs. Rogers’ mortgage was an incumbrance is conceded in the petition and proven by the decree. Then upon the facts found, her lien had the preference. ' But even suppose that it was as decreed, subject to the lien of the petitioners, why she should have been cut off from receiving the surplus, if any, after the payment of their claim, is a little difficult to understand. She was prevented from bidding at the sale, as the decree directed that if any surplus was realized it should be paid over to the defendant, Stout. By the well settled rule in such a case, the surplus should have been ordered to be paid over to the subsequent incumbrancer, or held subject to such further direction as the court might see fit to decree. See Hart et al. v. Wingart, 88 Ill. 282, and authorities referred to.
Whether the Master in Ohancery of the Aurora City Court had a right to advertise and sell the property, outside of the territorial jurisdiction of that court, we do not deem it necessary to decide, since the difficulty can be easily obviated upon any sale that may hereafter be ordered by directing it to be made upon the premises.
For the reasons indicated, the decree is reversed and the cause remanded, with leave to the petitioners to amend their petition.
Decree reversed.