Scheibner v. Cohnen

65 N.W. 760, 108 Mich. 165, 1895 Mich. LEXIS 1245

Opinions

Long, J.

We agree with the court below that this case does not fall within the principle of Gibbs v. Hanchette, 90 Mich. 657. That case was distinguished in Lamont v. Le Fevre, 96 Mich. 175. In speaking of the Gibbs Case, it was there said:

“The case of Gibbs v. Hanchette carefully distinguishes between such cases and those where, through an honest mistake, too much has been claimed in the statement of lien, or, by reason of a failure of proof, the claimant was denied the entire amount claimed.”

It is evident to us, from the claimant’s testimony, that, in stating the amount of his claim, he was honestly mistaken. We see nothing in the record contradictory to his explanation of how it occurred. The court below, who heard the testimony, was of the opinion that it was an honest mistake, and not an effort on the part of the claimant to place a lien upon the premises for a greater amount than he honestly believed his due.

The case is governed by Lamont v. Le Fevre, supra, and the decree below must be affirmed, with costs to claimant.

McGrath, O. J., Montgomery and Hooker, JJ., concurred with Long, J.