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153 Ill. App. 91

Wolff v. Schillinger

Appellate Court of Illinois

Decided February 15, 1910

Appellate Court of Illinois · decided 1910-02-15

<p>Liens'—section 3 of Mechanic’s Lien Act construed. A subcontractor is not entitled to a lien against the property of the wife by virtue of the provisions of section 3 of the Mechanic’s Lien Act, because the wife who knew of the principal contract with her husband did not protest in writing against it. A contractor alone is given the right to a lien by this section and he cannot by reason of its provisions maintain a personal action against such wife.</p>

Reversed · Decided 1910-02-15

Mr. Justice Mack

¶1delivered the opinion of the court.

¶2Plaintiff’s claim in this case was based solely on section 3 of the Mechanic’s Lien Law. He as subcontractor supplied goods to one with whom defendant’s husband, on his own behalf and not for his wife, had contracted for the erection of a building on defendant’s lot. She knew of the contract and did not protest in writing against it. There is no proof that she had any knowledge of the subcontract.

¶3This section aims to subject a woman’s property to the burden of her husband’s debts under' certain circumstances. If it he constitutional—and somewhat similar provisions have been held invalid in other states—nevertheless its scope cannot be extended by construction or implication.

¶4It is not only in that part of the Act that deals with the rights of original, not subcontractors, but by its express words, it gives a lien only to one acting in pursuance of a contract with the husband. Subcontractors are therefore excluded.

¶5Moreover it gives only a lien on the property; it does not attempt to charge the wife personally. A personal action is therefore inapplicable when the claim is based solely on this statutory provision.

¶6Reversed.

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