Hopson v. Dinan

• Decision Date: 21 June 1882
• Citation: 48 Mich. 612,12 N.W. 875
• Court: Michigan Supreme Court
• Parties: HOPSON and another v. DINAN.

12 N.W. 875

48 Mich. 612

HOPSON and another v. DINAN.

Supreme Court of Michigan

June 21, 1882

Where a party contracted to build a house for defendant, the payments to be made by instalments as the building progressed, and he was sued in assumpsit by the plaintiff and garnishment was served on the owner of the building he was constructing, as being his debtor on the contract, held, that the garnishment having been served before the completion of the work, and that, defendant under the contract, being entitled to claim three dollars a day for every day after a certain date that the building remained unfinished, as there was no proof of a state of indebtedness at the time suit was commenced, the judgment of the justice's court in favor of defendant is affirmed, and the judgment of the circuit court reversing the same was error.

Error to Wayne.

George H. Prentis, for plaintiff.

James T. Keena, for defendant and appellant.

GRAVES, C.J.

In July, 1881, one Frederick Speier entered into a written contract with the defendant Dinan that he would erect three specified frame dwellings for Dinan and would "well and sufficiently perform, finish and complete all the work included in the excavation, drain brick work, concreting plastering, and all work included in and implied by mason's specifications to plans; also all carpenter and joiner work, iron and tin work, all plumbing and gas-fitting and painting and glazing, and all work indicated on and implied by plans and specifications for completion and entire finishing" of the buildings, "and in strict accordance to and with the plans, specifications, conditions etc., furnished said contractor by W.G. Malcomson architect." The contract provided that Speier should fully perform on or before the first of November, 1881, and that Dinan should pay therefor $4,972. It was also agreed that the round price so stipulated to be paid for the entire work and materials should be "payable in manner following, viz., (when drains are in and brick work off:)

1881, August 18. 1. Cellars and foundations are completed, the sum of .... $500

1881 August 18. 2. Frames up and sheaths, the sum of ...................... 700

1881 September 7. 3. Roofs and cornices on, the sum of .................... 600

1881 September 7. 4. Building enclosed, the sum of ........................ 700

1881 October 26. 5. Ready for lath the sum of ............................. 800

1881 December 9. 6. Outside finished complete, building ready to plaster, . 800

1881 December 9. 7. All completed and accepted, ........................... 872

There were other provisions which need not be quoted.

According to one of them it was stipulated that Dinan should have three dollars for each day the job should remain unfinished after November 1st. The plaintiff brought assumpsit against...