John Spry Lumber Co. v. Sault Sav. Bank, Loan & Trust Co.

• Decision Date: 25 October 1889
• Parties: JOHN SPRY LUMBER CO. v. SAULT SAV. BANK, LOAN & TRUST CO. ET AL.
• Court: Michigan Supreme Court

43 N.W. 778

77 Mich. 199

JOHN SPRY LUMBER CO. v. SAULT SAV. BANK, LOAN & TRUST CO. ET AL.

Supreme Court of Michigan

October 25, 1889

Appeal from circuit court, Chippewa county; C. B. GRANT, Judge.

Action by the John Spry Lumber Company against the Sault Savings Bank, Loan & Trust Company and others to enforce a mechanic's lien for material, under the mechanic's lien statute of Michigan of 1887, Act No. 270. Plaintiff appeals from a judgment denying his lien.

E. S. B. Sutton, (Shepard &amp Lyon, of counsel,) for appellant.

Hayden & Young, H. M. Oren, and John H Goff, for appellees.

CAMPBELL J.

Plaintiff sued, counting expressly on the lien law, (No. 270 of the General Laws of 1887,) claiming a lien on the banking-house of the principal defendant for lumber furnished the defendants Myers, and used in its construction. The savings bank, loan, and trust company made a written contract with the defendants Myers, June 27, 1887, to begin by July 1 1887, and finish by November 1st, for $27,000, the building in question, payable on monthly estimates, with the usual drawback of 20 per cent. to be held till completion. The court below held the lien law of 1887 to be unconstitutional, and gave judgment on the personal debt against defendants Myers, who do not appeal. Plaintiff appeals on account of the denial of the lien.

The law of 1887 repeals all previous laws on the subject, and only saves pending proceedings. But it is assumed, and correctly to apply to all material furnished after the law took effect, whether under old or new contracts. It changes the old law chiefly in regard to the cases under which liens may be created, and does so in such a way that it must stand or fall together. The machinery is merely secondary and incidental. The new law varies from the old law in these important particulars: First. It allows a homestead to become bound to the persons claiming a lien, where a building contract is executed with the original contractor, signed by husband and wife. Second. It binds a married woman's land, where the articles or labor are furnished to a contractor or subcontractor of the husband with her knowledge or consent, express or implied, as if by her own express authority; and furnishing labor or materials "in an open and public manner" is made sufficient evidence of knowledge and consent. Third. The building contract made with any person, whether man or woman, has no effect on the lien, whether fully performed by the land-owner or not; and the laborer or furnisher may enforce his lien for any material or labor furnished under any...