132 Mich. 17 | Mich. | 1902
This is a chancery suit to enforce two mechanics’ liens against the property of the first-named defendant. The first-named complainant claims a lien by reason of lumber furnished in the construction of a house for the defendant Keohane. The other two complainants are partners doing business under the firm name of Hugg & Oltz. They claim a lien for the balance unpaid on a contract to do the masonwork on said house, and for labor performed in lathing said house. The court below decreed the enforcement of these claims at their full amount.
“The testimony shows she was living on Lansing avenue, and that she did not own the house. I will produce further proof of that.”
No further proof was produced either by complainants or by defendant.
The trial judge, in his decision,, stated:
“I find, also, * * * that this was not the homestead of the defendant at the time the liens were filed. Indeed, she had another and separate homestead.”
It must be admitted that the evidence respecting the homestead was left in an unsatisfactory state. It is difficult to understand why complainants’ counsel did not
In completing the house after the abandonment by defendant Scheel, defendant Keohane did make some changes in the original contract, which obtained for her a house, as she stated, “a little better” than was originally contemplated. These changes, however, were simply such changes as an owner, in good faith, not infrequently makes during the process of construction. For instance, a window was extended out; grills were put in; inside woodwork was filled and oiled, when the specifications called for three coats of paint; bevel plate glass was put in the front door, when the specifications required No. 1 glass. Surely, these changes do not justify a disregard of the principles of the case of Smalley v. Gearing.
The condition of this record, however,, is not such as to enable this court to finally dispose of this controversy. It has already been stated in this opinion that it is impossible to determine from this record what amount was due Messrs. Hugg & Oltz at the time defendant Scheel abandoned the contract. It is shown by the testimony in this case that, after that abandonment, Messrs. Hugg & Oltz did some work under an agreement with defendant Keohane that she should pay for the same; that the' total amount due for work done under said agreement with defendant Keohane, and the balance remaining due under their contract with defendant Scheel, aggregated $93.50. But how much of this $93.50 consisted of the balance due under their contract with defendant Scheel, or how much arose from work done under the agreement with defendant Keohane, the record does not disclose. It is obvious that the amount due Messrs. Hugg & Oltz for work done directly under a contract with defendant Keohane should not be reduced, under the principles of Smalley v. Gearing, supra. It is equally obvious that the amount due them for work done under their contract with defendant Scheel must, in accordance with those princi
Complainants Hugg & Oltz are entitled to a decree for the full amount of their claim for work done after the abandonment by defendant Scheel. The balance of their claim, and the claim of the complainant the Delray Lumber Company, must be reduced according to the principles announced in the case of Smalley v. Gearing, supra; that is to say, they will have such a proportion of the amount of their claim as $1,100 is of the cost of constructing the house in accordance with the original contract. The record shows every element of this entire cost, except one, viz., the amount expended by defendant Keohane in constructing the house according to the original contract. This amount may be determined by subtracting from $1,016.35 (the amount it cost the defendant Keohane to complete the building in the way it was completed) the cost of changes and extras. The remainder, added to $405 (the aggregate of complainants demands), and $405.02 (the amount expended by defendant Scheel), will represent the entire cost of constructing the house according to the original contract.
The decree will be reversed, and the record remanded to the court below, with directions to take proofs and to enter a decree in accordance with the principles herein stated. Defendant Keohane will recover the costs of this court. Complainants will recover costs in the lower court.