William Munroe Co. v. Scherer, Docket No. 61

Docket No. 61 | Mich. | Jul 19, 1921

Wiest, J.

In this suit plaintiff as a materialman seeks a decree enforcing a. mechanic’s lien. The bill was filed against Hugo Scherer, the owner of the property, Jerry 'Wolf, contractor, and the Gregg Hardware Company and other materialmen. Shortly after the bill was filed the owner of the property filed bonds with defendants Hugo Miller and John Bell, sureties thereon, to release the liens of the plaintiff and the Gregg Hardware Company. Plaintiff then filed an amended bill making Miller and Bell parties defendant, and the Gregg Hardware Company filed an answer and cross-bill for the foreclosure of its lien. Subsequent pleadings were filed by the parties. Settlement of the claim of the Ternes Coal & Lumber Company has been made and that company is out of the case. At the hearing the circuit judge found that, after the liens of plaintiff and the Cregg Hardware Company had attached in due form, the defendant Scherer, the owner of the property, demanded of the lienors a written statement of the amount of work and materials furnished and then unpaid, in accordance with the statute, and that such demand was not complied with and thereto plaintiff’s lien and that of the' Gregg Hardware Company were forfeited and lapsed and dismissed the bill of plaintiff and the cross-bill of the Cregg Hardware Company. Plaintiff and the-Gregg Hardware Company bring the ease to this court by appeal. If the circuit judge was right in holding that the liens were lost by reason of the failure of the lienors to furnish the demanded statement then there is no occasion to pass upon the other questions raised.

The statute, 3 Comp. Laws 1915, § 14803, provides:

“Each person claiming a lien as aforesaid shall,, from time to time, whenever required by such owner, part owner or lessee, or his agent, and within five days from demand thereof, furnish such person demanding the same, a written statement of the amount of work and materials furnished to date of statement, and then unpaid, as nearly as can then be ascertained,, under penalty of a forfeiture of his lien.” * * *

This demand must be made before the filing of the bill to enforce the lien. Rohde v. Weinberg, 156 Mich. 318" court="Mich." date_filed="1909-04-24" href="https://app.midpage.ai/document/rohde-v-weinberg-7945266?utm_source=webapp" opinion_id="7945266">156 Mich. 318.

The original bill was filed in this case February 8, 1918. In December, 1917, the owner made demand on both lienors for statements. There is no evidence that the Gregg Hardware Company furnished any statement. Plaintiff claims that a statement was mailed to the owner, defendant Scherer, but the owner and Ms secretary, defendant Hugo Miller, deny having received it. We may pass by this issue of fact for the record contains a copy of the statement plaintiff claims was sent, and if it was not a compliance with the statute then it is immaterial whether it was received or not by defendant Scherer.

The statement claimed to have been mailed to defendant Scherer was as follows:

“Wm. Munroe Co.

100 Scotten Avenue,

Detroit, Mich.

“Mr. Jerry Wolf,

282 E. Jeff.

Stores and Flats — Harper and Sheridan.

“Contract for sash, doors and finish (August 15th, 1917), $1,650.00.”

Then follows a list of items of material furnished from August 15th to October 25, 1917, termed extras and amounting to $214.16, with a credit of $600 as of September 7, 1917, and a claim of amount due of $1,264.16.

Was this a statement of the amount of work and materials furnished? We think not outside of the extras. A statement of the amount of materials furnished means something more than a statement of the charge for materials furnished; it means character of material and quantity furnished. It is not in compliance with the statute and of no benefit to the owner for the lienor to serve a mere reiteration of the sum claimed to be due in the statement of lien on file. The statement of the amount of materials furnished if reasonably specific or itemized will permit the owner, with such statement in hand, to check up the items thereof in the structure and therefrom determine whether the lien claimed is just. The instant case in this particular is ruled by Frohlich v. Beecher, 139 Mich. 278" court="Mich." date_filed="1905-03-07" href="https://app.midpage.ai/document/frohlich-v-beecher-7942982?utm_source=webapp" opinion_id="7942982">139 Mich. 278.

It is contended that in case we hold the statute was not complied with by the plaintiff, then the personal knowledge possessed by the owner or by his agents relative to the amount of work and materials furnished relieved the lienors from the duty of furnishing a statement. We find no such excuse in the statute.

The decree entered below is affirmed, with costs to appellees.

Steere, C. J., and Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.