Blackwell v. Bornstein
| Decision Date | 07 October 1980 |
| Docket Number | Docket No. 46940 |
| Citation | 100 Mich.App. 550,299 N.W.2d 397 |
| Parties | William H. BLACKWELL, d/b/a Faith Drywall Company, Plaintiff-Appellee, v. Clare BORNSTEIN, Hamilton Farms, Ltd., a limited partnership, Defendants, and James T. Barnes Mortgage Company, a Michigan Corporation, Defendant-Appellant. 100 Mich.App. 550, 299 N.W.2d 397 |
| Court | Court of Appeal of Michigan — District of US |
[100 MICHAPP 551] James W. Batchelor, Paul A. Ward, Grand Rapids, for defendant-appellant.
Patrick J. Keating, E. Peter Drolet, Detroit, for Blackwell and Faith Drywall Co.
David S. Snyder, Southfield, for Bornstein and Hamilton Farms.
Before CAVANAGH, P. J., and HOLBROOK and PIERCEY, * JJ.
Plaintiff brought an action in the trial court to recover $26,151.56 for labor and materials he had supplied in the construction of eight apartment buildings. Defendant James T. Barnes Mortgage Company had taken a first mortgage on the subject property and contested the validity of the lien.
The question presented by this appeal is whether the mechanics' lien filed by plaintiff was timely so to create a valid lien.
Plaintiff entered into a contract on January 28, 1974, to supply and install drywall. Plaintiff commenced performance within three weeks. The job progressed smoothly through August of 1974, when payment ceased. Upon plaintiff's complaint to the general contractor, he was given assurances that, if the last building were completed, payment would be forthcoming. Plaintiff's laborers continued working at the site until November 18, 1974. [100 MICHAPP 552] At that time they were laid off from the job site. Plaintiff claimed to have returned to the site on November 22, 1974, after further assurances from the owner that if he finished the job he would be paid. He claimed to have worked 11 hours on that date.
On February 18, 1975, plaintiff caused to be recorded a mechanics' lien against the project for the unpaid contract balance of $26,151.56. The trial court concluded that this filing date was two days beyond the statutory period set forth in M.C.L. § 570.5; M.S.A. § 26.285. However, the court found that the plaintiff had substantially complied with the Mechanics' Lien Act and granted judgment for enforcement of the lien. In so doing, the court relied primarily on M.C.L. § 570.27; M.S.A. § 26.307 and Spartan Asphalt Paving Co. v. Grand Ledge Mobile Home Park, 400 Mich. 184, 253 N.W.2d 646 (1977). Defendant Barnes appeals as of right from the trial court's judgment.
The Mechanics' Lien Act was established to protect and enforce by lien the rights of persons furnishing labor or materials toward the construction of a building. M.C.L. § 570.1 et seq. ; M.S.A. § 26.281 et seq. Section 5 of the Act enumerates the procedure by which an individual commences enforcement of his statutory right. This section requires a recording in the office of the register of deeds, in the county in which the property to be charged with a lien is situated, of a verified statement of the amount due, name of the owner, and description of the property. Section 5 states:
"Such verified statement or account shall be recorded within 90 days from the date on which the last of the materials shall have been furnished or the last of the labor or the last of the designing, engineering or surveying[100 MICHAPP 553] services shall have been performed or the last day of use of any rented or leased equipment by the person claiming the lien, which statement may have been in the following form * * *." M.C.L. § 570.5; M.S.A. § 26.285 (Emphasis added).
Prior to trial of the present action, interrogatories were submitted by defendant Barnes to plaintiff asking for the first and last dates work was performed on the project. Plaintiff answered that the last date was November 18, 1974. Plaintiff submitted amended answers to the interrogatories, indicating the last day of work was November 22, 1974. In acknowledging and explaining the discrepancy when he signed the original answers, plaintiff stated he had not checked the dates in his record books.
Defendant asserts that the filing of the lien by plaintiff on February 18, 1975, was not timely in light of the 90-day statutory requirement. (The filing date is 92 days from November 18, 1974.) The trial court found that the plaintiff had "substantially complied" with the 90-day requirement of the Mechanics' Lien Act and so the lien was not defective.
The Mechanics' Lien Act is to be liberally construed. This is clearly stated in § 27 of the Act:
M.C.L. § 570.27; M.S.A. § 26.307.
The Supreme Court in Spartan Asphalt Paving Co. v. Grand Ledge Mobile Home Park, 400 Mich. 184, 253 N.W.2d 646 (1977), and this Court relying on Spartan Asphalt Paving Co. in P. H. I. Construction Co. v. Riverview Commons Associates, 80 Mich.App. 518, 264 N.W.2d 50 (1978), held that the mechanics' lien statute must be liberally construed to effectuate the intent of the Legislature. However, we find that the liberal construction referred to in these cases applies to sections of the Act other than § 5, the 90-day statute of limitations.
Substantial compliance with the Act has been held sufficient to promote the intended purposes and protections in its § 4 notice and service provisions. Spartan Asphalt, supra, Williams & Works, Inc. v. Springfield Corp., 81 Mich.App. 355, 265 N.W.2d 328 (1978), lv. gtd. 406 Mich. 871 (1979).
Where the language of a statute is unclear or "of a doubtful meaning" the court must give a reasonable construction, looking to the legislative purpose. Spartan Asphalt, supra. However, M.C.L. § 570.5; M.S.A. § 26.285 mandates that the statement of lien "shall be recorded within 90 days from the date on which the last of the materials shall have been furnished or the last of the labor * * * shall have been performed". The Legislature has clearly and unambiguously...
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