125 Mich. 177 | Mich. | 1900
This bill was filed to enforce a lien for materials furnished to S. E. Hartzell, a contractor and builder, in putting up a building for Charles H. Bostick, in Wexford county. The'contract price was $2,388. The building was completed about August 1, 1898, and Bostick went into the occupancy thereof. To secure its claim, complainant filed the statutory statement of lien within the proper time upon the lands and building of which Bostick was the owner. The property was described in the bill as “the west twenty-five feet off from lot twenty-one, and the west twenty-five feet off from the north half of lot twenty, in the village of Mantón, Wexford county, and State of Michigan, according to the railroad plat thereof.” It appears that all the formal steps necessary to constitute a valid lien were regular. The owner, contractor, and lien claimants were made parties defendant to complainant’s bilk It is undisputed that, at the time the liens were filed, Hartzell, the contractor, was owing to the complainant $109.94, and to the Greilick Co., another lien claimant, $333.36. A decree was made in the court below confirming the liens. The only defendant who answered the bill was the owner. It was taken as confessed as to the others. The defendant has appealed. He contends that the court below was in error in the decree rendered, for the reasons:
1. That there is a variance between the description of the premises in the notice of lien and statement of account filed with the register of deeds and in the bill of complaint upon which the lien is sought to be enforced.1
2. That there is no proof whatever that the materials furnished by the complainant ever entered into the construction of the building owned by defendant Bostick.
*179 3. That the proofs do not show that the notice of lien and statement of account was filed within 60 days after the last material was furnished.
4. That, the building being improperly constructed, the defendant is entitled to recoup a pro rata share of his losses from the complainant, if he be liable to complainant at all, and that the sum decreed in the case is correspondingly too large.
We are unable to agree with counsel for defendant upon any of these questions. It is undisputed that the building in question for which the complainant furnished materials belongs to Bostick; that it was built by Hartzell under a contract with Bostick, and is the only one built by him for Mr. Bostick. It is admitted by defendant Bostick that he does not own any interest in any other lots 20 and 21 in the village of Mantón, and that the brick building built by Hartzell under the contract is located upon lots 20 and 21, and as described in the bill of complaint. The question of* improper description under the claim of lien was discussed in Jossman v. Rice, 121 Mich. 270 (80 N. W. 25), and it was said that where the building is constructed on lots contemplated by the contract, being the only lots which the owner owns in the village, the lien can be claimed upon the land, though the contract describes it merely as ground in the village. That case, we think, disposes of the question raised here.
It is charged in the bill that at no time has Hartzell, the contractor, made out and delivered to Bostick, the owner, or his agent, a statement, under oath, of the name of any subcontractor or laborer employed by the contractor on the building, or the name of any person, firm, or corporation furnishing materials therefor, giving the amount which is due or to become due, as in such cases required by the statute. This allegation was admitted by the answer. We make this statement for the reason that a further claim is made by the defendant that he has already paid more than the contract price, and should be relieved from paying complainant the full amount of its claim.
We think there is some evidence that the materials furnished by the complainant went into the construction of the building owned by the defendant.
It appears from the sworn statement by the complainant that the last of the materials were furnished on the 20th day of July, 1898, and the statement of lien made on the 12th of August following. The bill states that this statement was filed in the office of the register of deeds on August 13, 1898, within the 60 days from the date when the last of the materials were furnished by the complainant. This is not denied by the answer, and there is some
We think the defendant’s contention that he should be allowed to recoup for the alleged defects in the building is not sustained by the evidence. He claims that he paid the contractor in full, and had gone into possession when this bill was filed. As between himself and the contractor, he was apparently suited with the building and accepted it, but he now attempts to set up this claim of recoupment against the parties furnishing the materials, which he did not set up against the contractor.
We think .the court below was not in error in sustaining complainant’s claim. The decree below must be affirmed, with costs.
The lots were described in the statement of lien as being located in the ‘ ‘ original ” plat of said village.