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to be notified, omits school officers, whereas if the legislature had intended to include school officials they would have been mentioned. It will be observed that the section provides for notice to officers of the State, county, township, city or municipality. In the use of the word "municipality,” after the word "city," it is apparent the legislature intended that the word “municipality" should be construed to mean some other or different political division from those which might fall under the designation of “city,"—otherwise we would have two words used in the section meaning the same thing, which it will not be presumed the legislature ever intended. We are inclined to the opinion that the legislature intended that a school building should fall within the description of a public improvement, and a school board may be included within the term “municipality,” within the meaning of the statute under consideration.
Under the above section of the statute a lien is con. ferred upon the person who may furnish material, etc., or labor, to any contractor, upon the money, bonds or warrants due or to become due to the contractor. In order to avail of the lien conferred, the sub-contractor is only required to serve a notice in writing on the official before the money is paid or before the bonds or warrants are delivered to the contractor. Here the notices were served by the sub-contractors upon the school board before the money in question had been paid to the contractor, and unless the plain provision of the statute is to be disregarded, the sub-contractors who furnished material are entitled to protection. But it is said in the argument: "The giving of these orders operated, in equity, as a transfer of so much of the funds due or to become due the contractor as was specified in the orders. That amount, in equity, was as effectually taken out from the amount due or to become due Brown, the contractor, as if it had been actually paid to appellants at the time these orders were deposited with the board of education.”
Under section 24 of the Lien law it is plain that the lien is created by the performance of the labor or the furnishing of the materials, and the lien of the sub-contractor becomes perfect as 'to all funds not paid over or bonds or warrants not delivered, upon service of notice on the officials. The statute makes no provision for the giving of orders by the contractor which may operate as an assignment of any part of the fund agreed to be paid for the construction of the building, nor is there any provision of the statute authorizing the school board to accept such orders, and we see no ground upon which it can be held that an assignment of the fund, by order otherwise, can defeat the lien created by statute. It is not pretended that the claim of the contractor was ne. gotiable or that appellants are entitled to protection as purchasers of a negotiable instrument. The claim is, that the orders are to be regarded as an equitable assignment of the money due or to become due from the school board to the contractor. Treating the orders as an equitable assignment, they would not defeat the lien of the subcontractors. The law is well settled that an assignee takes a non-negotiable instrument subject to all the infirmities which exist against it in the hands of the assignor, excepting latent equities of third persons. (Sumner v. Waugh, 56 Ill. 531; Silverman v. Bullock, 98 id. 11; Himrod v. Gilman, 147 id. 293; Daniell on Neg. Inst. sec. 726b; Pomeroy's Eq. Jur. secs. 708, 714.) The claim of the contractor against the school board, when he executed the orders, was a mere chose in action, and appellants took the assignment of the claim subject to all equities existing in favor of those who had liens under the statute. The appellants, as assignees of the contractor, stand in his shoes, and they occupy no better position than he would have occupied if he had retained the claim in his own hands. There is only one mode of obtaining a lien upon the fund, and that is by serving the notice on the officers required by the statute. When the notice is served the officers are compelled to retain in their hands a sufficient sum to pay the liens, and should there not be enough to pay the claims in full, then those serving notice are entitled to share in the fund pro rata. If, however, a contractor could defeat the lien of a subcontractor by merely transferring the fund due or to become due, by giving an order, the statute creating a lien in favor of a person furnishing labor or material to a contractor for a public improvement would become a nullity, as the fund might be transferred immediately upon making the contract to erect the building.
Appellees have assigned as a cross-error that the circuit court erred in refusing to hold the sureties on the contractor's bond liable for the deficit of $2023.38 due the sub-contractors from H. A. Brown, the contractor, after deducting the $1189.13 in the hands of the complainant in the bill. The condition of the bond is as follows: "Now, if the said Henry A. Brown shall duly perform said contract and all the covenants and agreements therein con tained, and shall pay and discharge from said premises all liens for material, labor or otherwise which may accrue on account of said building contract, then this obligation to be null and void, otherwise to be and remain in full force." This bond was given to the board of education for its protection and benefit. The board never claimed a breach of the bond, and there was no breach so far as the board was concerned. There were no liens against the premises and the building was completed, and there remained a balance in the hands of the board to be paid out under the contract, as was conceded by filing the bill of interpleader. The bond contained no provision under which the sureties became bound to protect sub-contract. ors, and no principle occurs to us under which they could be held liable on the bond. The judgment of the Appellate Court will be affirmed.
ISAAC BETTIS, impleaded, etc.
MARIA L. GREEN et al.
Opinion filed February 14, 1898.
1. APPEALS AND ERRORS—to authorize reversal, record must reveal prejudicial error. To authorize a reversal it must appear from the record not only that error intervened, but that such error was prejudicial, or probably prejudicial, to the party seeking reversal.
2. SAME-when partition decree will not be rerersed at the instance of a tenant. A partition decree finding that one of the defendants was a tenant from year to year will not be reversed, at his instance, on the ground that such finding was not warranted by the allegations or proof, where the proof shows that his only interest was as tenant but fails to disclose the duration of the tenancy, as, in such case, it may be inferred as well that his tenancy was for a less as for a greater period than a year.
WRIT OF ERROR to the Circuit Court of Monroe county; the Hon. B. R. BURROUGHS, Judge, presiding.
WILLIAM WINKELMANN, for plaintiff in error.
E. P. SLATE, and A. C. BOLLINGER, for defendants in
Per CURIAM: This was a bill in chancery to partition the lands of which one John Trout, Sr., died seized, among his heirs. The plaintiff in error was not an heir, but was made defendant to the bill because, as the bill alleged, he was “a tenant or claims to have some interest in the land.” Plaintiff in error was duly served but did not answer, and was defaulted and a decree pro confesso entered against him. The cause was referred to the master for proof. It appeared from the evidence taken and reported by the master, the said John Trout, Sr., died intestate on or about July 23, 1895, seized of the title to the land, and that plaintiff in error, at the time of the death of said John Trout, Sr., was in possession of a portion of the lands described in the bill, as a tenant of said deceased. The court found, and recited in the decree, the plaintiff in error was a tenant by the year, and that his term expired on the first day of August, 1896. This is a writ of error to reverse the decree as to the plaintiff in error.
It is urged the decree should be reversed because the bill does not set forth the interest or right of plaintiff in error in the premises with that definiteness which the statute in such cases requires, and that the finding and decree of the court that the only interest of the plaintiff in error was that of tenant by the year, are not warranted either by the allegations of the bill taken as confessed, or by the evidence, or both. It appeared from the proofs taken that John Trout, Sr., was seized of the title in fee to the land at the time of his death, and that such title descended to persons other than plaintiff in error, and that the only interest which plaintiff in error had in the lands was as a tenant under the said deceased. Nothing further appears in the record with relation to the character or duration of his tenancy. It may have been a tenancy at will, by sufferance or by the month, and if either, the finding and decree of the court were beneficial to plaintiff in error. It does not positively appear but that his tenancy may have been for a longer period than by the year, and therefore it is possible the decree in. juriously affected the plaintiff in error. But it is equally possible it is beneficial to him, and not injurious.
It is well settled that to authorize a reversal of a de. cree it must appear, not only that an error intervened, but the record must contain enough to raise and justify the inference that the error was prejudicial, or probably prejudicial, to the party who asks reversal. (Elliott on Appellate Procedure, secs. 592, 593, and many cases cited in note 1; Powell on Appellate Proceedings, chap. 4, secs. 105, 112, 113.) It is clear it does not affirmatively appear from the record that the decree sought to be re. versed injuriously affected the plaintiff in error.