124 Mich. 111 | Mich. | 1900
This is a bill filed to enforce two mechanic’s liens. Complainant in June, 1897, entered into a written contract to furnish to defendant company a steel gas-holding tank, “all delivered and erected on foundations” provided by defendant company, to be paid for, 50 per cent, on delivery of materials, 25 per cent, during erection, balance on completion and satisfactory test. The claim of lien filed with the register of deeds states that the last of the material was furnished on the 27th of November, 1897, and the last of the labor was performed on the 30th day of November, 1897. Complainant is also assignee of the Van Bochove & Sons Manufacturing Company,, which company filed notice of a lien for window frames, sash, and doors sold to the defendant company, to be used in a building on its premises. From a decree declaring a lien in favor of complainant under both claims, defendants appeal.
It is stated in complainant’s brief that the record is silent as .to whether such a notice was or was not served; but counsel evidently overlook the testimony of complainant’s witness Hackius, who testified as follows: “We never served any notices on defendant company, nor filed on record any notices, except these that have been offered in evidence.” No notice or statement such as required by section 4 was offered in evidence, and we think the testimony, fairly construed, shows that none was served. This being so, it follows that the complainant is not in a position to assert a lien, unless we say that it was not a contractor, but a material man, or that defendants are in some way estopped from asserting this defense. Sterner v. Haas, 108 Mich. 488 (66 N. W. 348); Wiltsie v. Harvey, 114 Mich. 131 (72 N. W. 134); Dittmer v. Bath, 117 Mich. 571 (76 N. W. 89). It is insisted by complainant’s counsel that the record shows that there are no other parties than the complainant interested, and hence
Decree will be modified to conform to the views herein expressed. Appellants will recover costs of this court.