F. M. Sibley Lumber Co. v. Letterman

• Decision Date: 20 March 1926
• Docket Number: June Term.,No. 8,8
• Citation: 234 Mich. 32,207 N.W. 869
• Parties: F. M. SIBLEY LUMBER CO. v. LETTERMAN et al.
• Court: Michigan Supreme Court

234 Mich. 32

207 N.W. 869

F. M. SIBLEY LUMBER CO.

v.LETTERMAN et al.

No. 8, June Term.

Supreme Court of Michigan.

March 20, 1926.

Appeal from Circuit Court, Wayne County; Frank Shepherd, Special Judge.

Suit by the F. M. Sibley Lumber Company against Flora Letterman and others. From a decree of dismissal, plaintiff appeals. Affirmed.

Argued before BIRD, C. J., and SHARPE, STEERE, FELLOWS, CLARK, and McDONALD, JJ.Routier, Nichols & Fildew, of Detroit, for appellant.

Wilkinson, Lowther, Wilkinson & O'Connell, of Detroit, for appellees Bevington.

STEERE, J.

Plaintiff is a corporation engaged in the lumber business in the city of Detroit and vicinity. It filed this bill to foreclose a line upon a house and 40-foot lot known as 37 Van Dyke place, located in a subdivision of the Van Dyke farm near Detroit. The fee title to the property was held by one or both of defendants George and Flora Letterman, but defendants Harry G. Bevington and his wife, Charlotte M. Bevington, held the property as joint purchasers under a land contract and are the active defendants in this proceeding.

They desired to remodel the house on these premises and Mrs. Bevington had, amongst others, a building contractor named Flinn look over the building with her and pointed out to him the work desired done, requesting him to submit figures to herself and husband, which he did, and a contract was made with him to do the work.

A written contract was drawn up providing at length the details of the remodeling, involving in various particulars reconstruction and additions. The contract price for this undertaking was $5,800, including work and material. Who prepared the instrument is in dispute. It is typewritten, and signed by J. L. Flinn and Harry G. Bevington. The introductory paragraph recites that it is made between J. L. Flinn of Detroit, party of the first part, and ‘Dr. H. G. Bevington and Charlotte M. Bevington of the same place, party of the second part.’ Mrs. Bevington is not otherwise mentioned in the instrument and did not sign it. The contractee is thereafter referred to as ‘party of the second part.’ It is undated, but the testimony indicates it was executed before work was begun, some time between May 15 and June 22, 1920.

Flinn timely entered upon performance of his contract and procured his material for the woodwork from plaintiff. Its first delivery was on June 22, 1920, and the last on October 2, 1920. Mrs. Bevington made no payments on this contract, and it is not shown to have any independent estate. As the work progressed, Flinn, from time to time, obtained payments on his contract from Dr. Bevington, aggregating $4,850, claiming he needed the money to buy material and go on with the work, but in that connection furnished him no sworn statements under the statute. He finally failed to complete his contract and defaulted in payments for material. Plaintiff timely filed a lien on the premises for a balance due for material furnished, amounting to $2,966.48.

It was shown that the property in question was being remodeled as their home by Dr. Bevington and his wife, and was held by them as vendees under an executory contract of purchase as joint tenants by entireties. The issue raised by defendants' counsel was not directed against the regularity of the lien proceedings as such, but to whether any lien could attach when the written contract pursuant to which the improvements were made was not signed by the wife. At conclusion of the proofs the court dismissed plaintiff's bill under the following provision of the lien law (3 Comp. Laws 1915,...