Opinion of the Court,
Gary, P. J.On the 9th day of October, 1891, the appellants, in compliance with section 4, chapter 82, B. S., “ Liens,” filed in the office of the clerk of the Circuit Court, a statement of mill work furnished by them for some houses then being built, showing items running from April 28th, through all the intervening period to August ,7th of that year.
That statement contained this clause: “ The said materials were to be paid for sixty days from the first of the month next after delivery.”
In their petition for a mechanics’ lien (as amended) they alleged that the payment was to be made “ sixty days after the date of the delivery, respectively, of the items of material furnished.”
The statement filed, was an exhibit to the petition; the appellee demurred, and the court sustained the demurrer.
That decision is now defended upon the ground that as the statement is an exhibit, the court on demurrer will regard it as controlling, if inconsistent with the allegation in the petition, and that from the statement it appears that it was filed more than three weeks before the last item was due. We agree with the appellee that section. 4 contemplates that the money shall be due when the statement is filed, for the last clause of it provides that the claimant “ may bring suit at once,” and there is no hint in the whole chapter that he may sue before his money is due, though in such case he may, under section 1G, intervene in a suit commenced by any other party.
This case is not within the principle that an exhibit controls the pleading. That principle applies where the suit is to enforce the rights accruing .under the exhibit. All the cases in which it is referred to, are of that character. Field v. Brokaw, 40 Ill. App. 371, and cases to be found by following the references there, are among them.
It is true, that the statement is a condition precedent to the suit, at least as against others than the owner (Sec. 28), but any blunder or mistake in it, or surplusage added to it, will not prevent or defeat the lien, if enough remains to show compliance with the statute, and nobody has been misled to his prejudice. Slight v. Patton (Cal.), 31 Pac. Rep. 248.
The section does not require that the time the money was due should be stated, but, by construction, does require that it shall be due—perhaps due at least the day before—when it is filed, by permitting “ suit at once.” The unnecessary part of the statement as to the time of payment may be rejected as surplusage. There is no element of an estoppel in the matter. It is but an admission, which may be overcome by evidence, if untrue.
On the demurrer, the allegation of the petition must be taken as the truth, and if there has been any misleading by the statement by which injury would follow if the statement is not adhered to, that fact can not appear on a demurrer.
The appellants urge that the August items may be dropped, and a lien enforced for the residue,- if they are to be bound by the statement. The petition states the contract to be (somewhat vaguely) to furnish the mill work that might be called for in building the houses.
The August items were a part, small, but still a part, of an entire contract, and no lien would accrue for part performance, (Geary v. Bangs, 33 Ill. App. 582,) nor, as we read section 4, until all the money upon the contract, as entire, was due.
The appellants must stand upon their whole claim, but are entitled to do that if they prove that it was due when they filed their statement.
Their application to amend the statement was rightly denied. McDonald v. Rosengarten, 134 Ill. 126.
But the demurrer was wrongly sustained, and the decree is reversed and the cause remanded.