192 Mich. 71 | Mich. | 1916
(after stating the facts). It is the contention of the defendants’ counsel that the lien as filed, and the bill to foreclose the same, did not contain “a
The contract price agreed upon in the contract.between the parties hereto included the amount due the subcontractors, and the plaintiff clearly had a legal obligation to pay these amounts to the subcontractors. The fact that the lien law gave the defendants the right to retain from the amount due the plaintiff the amounts due to the subcontractors does not discharge the legal obligation created by the contract between the plaintiff and the defendants, nor does it discharge the legal obligation of the contractor to pay his subcontractors the amounts due them. The contractor, for his own protection, it seems to us, has the right to include in the amount he claims the amounts due from him to his subcontractors. In case the contractor should file his lien for the amount due under the contract, less the amounts due the subcontractors, he would be bound by that amount, and if the defendants paid him that amount, it would release their property from the lien attached. If the subcontractors did not file a lien, the owners would not have to pay. The contractor would not be able to assert a further lien for these amounts against the owner’s property, and would thus have lost the benefit of the lien statutes for the amount he was obliged to pay the subcontractors. The amount claimed by the plaintiff in his statement of lien included, it is true, amounts which had been paid to certain of the subcontractors
Counsel cite the following cases: Gibbs v. Hanchette, 90 Mich. 657 (51 N. W. 691); Brennan v. Miller, 97 Mich. 182 (56 N. W. 354); Scheibner v. Cohnen, 108 Mich. 165 (65 N. W. 760); J. E. Greilick Co. v. Taylor, 143 Mich. 704 (107 N. W. 712); Griff v. Clark, 155 Mich. 611 (119 N. W. 1076, 29 L. R. A. (N. S.) 305, 130 Am. St. Rep. 582). The facts in this case are easily distinguished from the facts in the cases cited, because it clearly appears that in those cases the claimant included amounts to-which he was not entitled under any circumstances. But in the case at bar the amount stated was the balance actually due under the terms of the contract itself. We think this case is governed by Lamont v. Le Fevre, 96 Mich. 175 (55 N. W. 687).
The next contention involves the claimed lien for extras which it is urged were not ordered in writing, whereas the contract provided that all extras should be ordered in writing. It appears that the contract itself does not provide that the extras should be ordered in writing, but the specifications for the building do contain such a provision. An examination of this record shows that on the hearing in the court below it was strongly urged that the extras were not furnished at the request of the defendants, and were not worth the amount claimed for them. But we have been unable to find that the claim now urged' — that they could not recover for extras because they had not been ordered in writing — was raised in the court below, or relied upon until the case reached this court. We have said that under these circumstances we will not consider this question. See Jeup v. State Fire Marshal, 182 Mich. 231 (148 N. W. 340).
The remaining contention of the appellant is that the court did not allow the owners anything for the cost of finishing the building in accordance with the plans, after the contractor had ceased working, and that there was no testimony on which to base the allowance made by the court below of $90 for the cost of painting the exterior of the house (which had not been done by the contractor), and for defects in the house. This contention involves a review of all the testimony in the record, which it would not be profitable to attempt to do in an opinion. In a general way it was the defendants’ contention that the house was not completed in a workmanlike manner, and this contention is largely supported by the testimony of the defendant Emery Garman himself, who was a carpenter, and the testimony of Mr. John Pagganetti, a contractor of some years of experience, who examined the house and discovered a number of defects. The testimony is controverted by the testimony of the plaintiff and an architect, Thulin, who was a witness for the plaintiff.
It is conceded that the exterior painting of the house was not completed, and the defendant Emery Garman testified that he had obtained an estimate from a Mr. Billings that it would cost $125 to complete it accord
In this class of cases it is often difficult for an appellate court, without the advantage of seeing and hearing the witnesses, to weigh the testimony and get at the truth. But it does seem that the estimate of the defendants with reference to the cost of the painting is nearer the amount required than that of the plaintiff.' A careful reading of the testimony satisfies us that the defendants should be allowed $125 for painting the exterior and the interior to bring it up to the specifications.
Considerable criticism is also made, among other things, of the way in which the plate rail was put up in the dining room, and the rail on the porch. In the amount fixed by the trial judge, counsel for plaintiff is of the opinion that $15 was allowed to complete the painting, and the balance of $75 for these defects, and is of the opinion that this was an ample allowance. The best that can be done under the testimony in this case is an approximation, but that this construction was defective the record is convincing, and we think that $75 should be allowed for these defects. We are therefore of the opinion that instead of $90, there should be subtracted $200 from the amount due.
The decree thus modified will be affirmed. Neither party will recover costs of this appeal. The cost of printing the record will be equally divided between them.
