Fairbairn v. Moody

116 Mich. 61

• Court: Michigan Supreme Court
• Decided: May 24, 1898
• Status: Published

Opinions

Montgomery, J.

Complainant filed a bill to enforce a mechanic’s lien. The bill was taken as confessed by the defendants Warren and the Kalamazoo College. The defendant Moody answered, setting up a claim of estoppel. The circuit judge dismissed the bill, and the complainant appeals.

The evidence to show an estoppel was in substance as follows: The complainant was a subcontractor. After the work was completed, he stated to the architect, Mr. Mills, that he was anxious to get the matter closed up, and that he wished that Mr. Moody would hurry up and pay Mr. Warren, so that he (complainant) could get his money out of Warren. Subsequently the architect gave Mr. Warren the usual certificate, and Mr. Moody paid him the full amount remaining due. The architect testifies that he stated to Mr. Moody that complainant stated that he was anxious to have him give the certificate, so that Warren could get his money, and Mr. Moody testifies that Mr. Mills told him this, and that it was because of this conversation that he did pay Mr. Warren. It is true there are other portions of Mr. Moody’s testimony which tend to show that he did not pay the money in reliance upon the statement made to Mr. Mills and reported to him; but he subsequently corrects such statements, and affirms that they were made because of a failure to comprehend the questions of counsel. We think the evidence fully shows that the last payment was made in reliance upon this request of complainant, and the circuit judge’s finding to that effect should be affirmed. This payment was $204.92, and complainant’s claimed lien amounted to $300, leaving a balance of $95.-08 as to which the defense of estoppel does not apply. It therefore becomes necessary to inquire whether there are defects in the proceedings.

It is claimed that, as the full contract price was paid, and all distributed for labor and materials, there can be no further lien; but under section 1 of the mechanic’s lien law, Act No. 179, Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893, the owner is not protected in payments made to the principal contractor, in the absence of a statement on oath by the contractor, showing the names of the subcontractors, etc., and such payments are made at the risk of such owner, and do not discharge the lien, unless distributed by the contractor among the subcontractors, material men, and laborers, “or, if distributed in part only, then to the extent of such distribution.”

It is also claimed that no preliminary notice of the intention to furnish material was served. It is true no notice was served prior to the furnishing of material, but section 1 provides that such notice shall be sufficient if served at any time after the 10 days, but before the original contractor furnishes the statement under oath required by the same section. Such a notice was served later in the present case.¹

The affidavit and claim of lien referred to by section 5 was sworn to on the 20th of October, and appears to have been filed on the 21st. It is claimed that this difference in dates invalidates the lien. Counsel relies on the analogy between these proceedings and attachment cases, and cites Drew v. Dequindre, 2 Doug. (Mich.) 93, and McPherson v. McGillis, 93 Mich. 525. We think these cases ought not to rule this. The purpose of this filing is to furnish notice. The owner is not deprived of the possession of property on the strength of this affidavit, and we do not think the lapse of a day between the date and the filing should invalidate the notice.

It is also said that the service of the notice of filing this lien was premature, as it was served on the day of its date, and before filing, whereas the statute provides that the notice must be served within 10 days after filing; but we think this a too technical construction of the statute. The purpose of the notice was subserved in this case.

It is also urged that the claim of the lien was excessive, as it was stated at $331. We are satisfied of the good faith of complainant in this regard, and the mistake does not invalidate the lien.

It appears that the total cost of the work to the principal contractor was substantially $3,500. The contract price was $2,700, which has all been paid. Had this been distributed pro rata to the subcontractors, material men, and laborers, complainant would have received substantially 27-35, or $73.31, for which amount he is entitled to a decree. Complainant will recover costs.

The other Justices concurred.

1 See Blitz v. Fields, 115 Mich. 675.