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,
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
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.
See Blitz v. Fields, 115 Mich. 675.
A rehearing was granted in this case, and briefs have been filed by both counsel. The defendant’s counsel says:
“Every dollar of the contract price has been distributed for labor and materials furnished in making the improvements. Under the statute, this would appear to be a complete defense; but the court has practically read into the statute the condition that the distribution must be pro rata.”
We have the misfortune to have been misunderstood by counsel. The court has read nothing into the statute. We have construed the language employed in the statute itself. By the plain provisions of the statute, payments made by the owner “before the contractor shall have furnished him with a statement as hereinbefore provided” shall be at the owner’s risk. “ And no payment made to any contractor before the expiration of 60 days shall defeat any lien of any subcontractor, material man, or laborer unless such payment has been distributed among the subcontractors, material men, or laborers, or, if distributed in part only, then to the extent of such distribution.” What is meant by “ distribution ? ” The definition given by Webster is: “The act of distributing or dispensing; the act of dividing or apportioning among several or many; apportionment; as the distribution of an estate among heirs or children.” It cannot be said that the payment to one of the entire contract price would amount to “distribution,” nor is it doubtful that the term as here employed means a distribution among all entitled to take; otherwise the provision is meaningless, and affords no protection to the laborer or subcontractor.
But it is contended that an error occurred in applying the principle to the former decision. It appears that the actual cost of the building was $3,535; the contract price $2,704. Complainant’s pro rata share would be $576.13.
The decree of the court below dismissing the bill will be affirmed, with costs. As this rehearing was made necessary by our own error, no costs will be awarded for the rehearing.