Vorrath v. Garrelts

192 N.W.2d 547, 35 Mich. App. 463, 1971 Mich. App. LEXIS 1507

• Court: Michigan Court of Appeals
• Decided: August 23, 1971
• Docket: Docket 10122
• Status: Published

Opinions

R. B. Burns, P. J.

Plaintiff contractor agreed to construct a house according to plans submitted by defendant owner for the sum of $28,948.70. Numerous changes in the plans, all of which were suggested by the defendant, increased the total price by an additional $6,000. After requesting, but not receiving, the additional $6,000 for these plan changes the plaintiff ceased working on the defendant’s partially-completed house.

At trial level the plaintiff’s mechanic’s lien was upheld and foreclosed in the amount of $6,663.

Seeking to invalidate plaintiff’s lien the defendant argues that plaintiff’s statutorily-required contractor’s statement was defective.¹ Plaintiff contends that the errors were harmless and that his “substantial compliance” with the statute in question was sufficient.

The pertinent statutory provision (MCLA § 570.4 [Stat Ann 1970 Rev § 26.284]) states:

“The original contractor shall, whenever any payment of money shall become due from the owner # * * or whenever he desires to draw any money from the owner * * * make out and give to the owner * * * a statement under oath of the number and names of every subcontractor or laborer in his employ, and of every person furnishing materials, giving the amount, if anything, which is due or to become due to them, or any of them * * * . Until the statement provided for in this section is made, in manner and form as herein provided, the contractor shall have no right of action or lien against the owner.” (Emphasis supplied.)

Plaintiff conceded he failed to include several subcontractors and laborers in his contractor’s statement.

“Strict” not “substantial” compliance is the rule of construction concerning the question of whether or not a lien attaches.

In Burman v. Ewald (1916), 192 Mich 293, 295, the Court said:

“The statute providing for a mechanic’s lien, being in derogation of the common law, must be strictly construed to the point when the lien attaches; that thereafter, because of its remedial character, a liberal construction may be indulged.” (Emphasis supplied.)²

Plaintiff argues that he is not required to list those subcontractors and laborers that he paid prior to filing his statement.

This argument was upheld by the Court in Halpin v. Garman (1916), 192 Mich 71. In Spicer v. Dugrey (1922), 221 Mich 264 the Court upheld a lien when the plaintiff inadvertently omitted one bill due to an electrical contractor. However, in the present case the contractor omitted eight of 18 subcontractors to whom money was owed. The omission cannot be interpreted even as substantial compliance.

Providing the owner with a list of unpaid subcontractors, laborers, and materialmen and the amounts due them as required by statute is a condition precedent to the attachment of a mechanic’s lien. Wood v. Bolinger (1930), 252 Mich 489; Wildey v. Gillett (1912), 171 Mich 153.

Reversed. Costs to defendants.

Fitzgerald, J., concurred.

1 When seeking a mechanic’s lien the original contractor must file a contractor’s statement. MCLA 8 570.4 (Stat Ann 1970 Rev 8 26-.284).

2 See, also, Wallich Lumber Co. v. Golds (1965), 375 Mich 323; Lowrie & Webb Lumber Co. v. Ferguson (1945), 312 Mich 331; Grand Fiver Lumber & Coal Co. v. Glenn (1926), 234 Mich 310.