Boots v. Steinberg

• Court: Michigan Supreme Court
• Writing for the Court: HOOKER, J.
• Citation: Boots v. Steinberg, 100 Mich. 134, 58 N.W. 657 (Mich. 1894)
• Decision Date: 17 April 1894
• Parties: BOOTS v. STEINBERG.

58 N.W. 657

100 Mich. 134

BOOTS v. STEINBERG.

Supreme Court of Michigan

April 17, 1894

Appeal from circuit court, Grand Traverse county, in chancery; J. G Ramsdell, Judge.

Action by James A. Boots against Julius Steinberg. From a judgment for complainant, defendant appeals. Reversed.

Covell & Gilbert (Fitch R. Williams, of counsel) for appellant.

Pratt &amp Davis, for appellee.

HOOKER J.

Complainant having performed labor upon defendant's building, filed the bill in this cause to enforce a mechanic's lien for a balance which he claims to be due upon the contract including some extras not included in the specifications, which were made a part of the contract. This contract was made September 14, 1891. According to the complainant's testimony, the work was commenced September 17, 1891, and completed on December 29th, following. The statutory notice was filed on February 11, 1892, and was in strict conformity to the requirements of the statute. Laws 1891, p. 231. The defense is interposed that nothing is, or at the time of such notice was, due, it being claimed that, by the terms of the contract, the amount would not become payable until the building was completed to the satisfaction of the defendant, which has not been done. It is further asserted that, by the terms of the contract, the price for extras was to be settled by arbitrators, unless agreed upon; that it never has been determined in either way, and hence the same is not due, nor is it the proper subject of a lien. It is also alleged that, owing to careless or unskillful work, the building is not as valuable as it would otherwise have been, by reason of which the defendant has suffered damage, exceeding the amount of complainant's claim. Defendant also claims that he has furnished goods to the workmen of complainant, and has furnished materials for him in and about the erection of the building, which should be applied in payment. The further claim is made that the complainant has filed an excessive lien, and that it is therefore void. The brief of defendant's counsel states the matters in dispute relating to the nonperformance of the contract as follows, viz.: (1) Failure to properly put in concrete footings, in that some were not as deep as required, and that the concrete was put in the water, instead of being put in dry. (2) Failure to finish and clean the front elevation. (3) Failure to line, clean, and "rub smooth" the flues in the building. (4) Failure to point up under the window sills and stonework of the foundation. The contract provides that "the contractor shall and will well and efficiently perform and finish, under the direction and to the satisfaction of Julius Steinberg, or his superintendent, if he should appoint one (acting as agent of said owner), all the work hereinafter mentioned to be performed," etc. It further provides that "the owner, Julius Steinberg, shall have power to act as superintendent of said work, or to appoint some one to act in such capacity." The payments are provided for as the work progressed, reserving 10 per cent. from each amount mentioned, and, "within ten days from the completion of said work to the satisfaction of said Julius Steinberg, the entire balance due the contractor shall be paid." This contract clearly requires that the work should be done to the satisfaction of the owner or his superintendent, as it progressed, and that it should not be fully paid for until completed to the satisfaction of the owner. Some of the matters complained of were, according to our view of the evidence, approved by the owner and the superintendent, as the building went up. We think that was true of the concrete footings, which were not constructed according to the specifications, but which were discussed, and the course taken acquiesced in. There might be some force in the contention that the same is true of the construction of the flues, as to lining and rubbing, were there evidence that it was knowingly permitted, or if the facts were such as to make it plain that the owner or superintendent must have acquiesced. To go further, and say that the fact that such construction without interference is conclusive of the question of approval, would be, in effect, to say that...