144 Mich. 557 | Mich. | 1906
Briefly stated, the facts in this case are that Tobin & Co., having contracted with the Globe Fence Company to furnish necessary materials and erect a factory for it near Hudson, Mich., made a contract with the Collingwood Brick Company, of Toledo, Ohio, to furnish them with brick for the job, estimated to require about 275,000. The brick company furnished 275,000 brick, shipping them to Tobin & Co. at Hudson, the last
There was no error in excluding compensation for the brick shipped August 6th, inasmuch as they were not used in the building. That point is ruled by the case of Smalley v. Gearing, 121 Mich. 190.
It is contended, however, and the circuit court appears to have held, that the time within which a lien may be filed does not expire until 60 days after the last furnishing by the materialman to the contractor of the material which the former has the right to understand and believe is ordered for the building. We held in Smalley v. Gearing, supra, that the furnishing of stone to a contractor, at his yard, was not the time that the statutory 60 days began to run, but'' that it should run from the time that the contractor furnished it upon the premises, and the lien in that case was saved upon that ground. In that case the
It is further contended that the fact that the brick were sold to Mr. Keefus, who was in the employ of the fence company, was notice to that company that these brick were furnished for the factory. If it could be said that notice to the agent was notice to the principal, which we do not say, the evidence fails to show any bad faith on the part of Keefus, or even that he knew of the representation made by Tobin & Co. to the brick company. Having reached the conclusion that the last car load of brick was not delivered to the landowner, nor upon the premises, we must hold that the notice of lien was filed too late.
The decree is reversed, and the bill dismissed, with costs of both courts.