L. Starks Co. v. Bigler

141 N.W. 570, 175 Mich. 468, 1913 Mich. LEXIS 817

Opinion

Ostrander, J.

The bill was filed for an accounting, and, besides claiming that complainant furnished defendant considerable money for the purchase of potatoes, which was not accounted for, charges that some of the money was used by the defendant in the construction of certain buildings, upon which, and upon the land they are built upon, complainant prays it may be decreed to have a lien. After a hearing upon the merits the court found that defendant is indebted to complainant for $3,832.99, and that the proofs do not sustain the right to a lien. Decree was entered accordingly. Complainant has appealed, questioning the court’s conclusion that it is not entitled to a lien. Defendant has not appealed, and no brief has been filed in this court in his behalf.

What relief should have been granted, in case complainant had shown that its funds were actually used by defendant to pay for the property upon which the lien is claimed, we need not determine. We agree with the court below that upon this subject the testimony does not support complainant’s theory. The case of Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554), relied upon by complainant, is, in its facts, very much unlike the case at bar. In that case defendant declined to offer any explanation for his possession of a sum of money claimed by his employer to have been stolen from him. Defendant’s circumstances, wages, and expenses negatived his legitimate possession of such a sum of money. A small part of it was marked money; his taking which was conclusively established. In the case at bar defendant tells where and how he obtained the funds. His story, if true, might have been corroborated, and in most respects was not; but, having made his statement, it was presumably open to complainant to dispute it.

We affirm the decree, with costs of this court to the appellee.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.