Kerr-Murray Mfg. Co. v. Kalamazoo Heat, Light & Power Co.

• Citation: 124 Mich. 111,82 N.W. 801
• Parties: KERR-MURRAY MFG. CO. v. KALAMAZOO HEAT, LIGHT & POWER CO. et al.
• Decision Date: 15 May 1900
• Court: Michigan Supreme Court

82 N.W. 801

124 Mich. 111

KERR-MURRAY MFG. CO. v. KALAMAZOO HEAT, LIGHT & POWER CO. et al.

Supreme Court of Michigan

May 15, 1900

Appeal from circuit court, Kalamazoo county, in chancery; George M Buck, Judge.

Suit by the Kerr-Murray Manufacturing Company against the Kalamazoo Heat, Light & Power Company and others to foreclose a mechanic's lien. From a decree in favor of plaintiff defendants appeal. Decree modified.

E. A. & Robert B. Crane, for appellants.

Osborn Mills & Master, for appellee.

MONTGOMERY C.J.

This is a bill filed to enforce two mechanic's liens. Complainant in June, 1897, entered into a written contract to furnish to defendant a steel gasholding tank, 'all delivered and erected on foundations' provided by defendant, to be paid for, fifty per cent. on delivery of materials, twenty-five per cent. during erection, balance on completion and satisfactory test. The claim of lien filed with the register of deeds states that the last of the material was furnished on the 27th of November, 1897, and the last of the labor was performed on the 30th day of November, 1897. Complainant is also assignee of the Van Bochove & Sons Manufacturing Company, which company filed notice of a lien for window frames, sash, and doors sold to the defendant, to be used in a building on its premises. From a decree declaring a lien in favor of complainant under both claims, defendant appeals.

1. It is claimed that the bill in this case was not in season to preserve the lien under the contract with the Kerr-Murray Manufacturing Company, as the contract was made when the statute of 1893 was in force, providing that liens shall continue six months after filing claim of lien with the register of deeds, and no longer, unless proceedings are begun, etc. As this lien must be disposed of on other grounds, we do not find it necessary to determine whether the amendment of 1897, fixing the period of one year, controls in this case. The objection has no application to the claim of the Van Bochove & Sons Manufacturing Company, as their claim arose after the law of 1897 took effect.

2. It appears that no notice was served on defendant stating the names of subcontractors, laborers, or material men, as required by section 4 of the act (Comp. Laws, � 10,713) which provides: 'The original contractor shall, whenever any payment of money shall become due from the owner, part owner or lessee, or whenever he desires to draw any money from the owner, part owner or lessee on such contract, make out and give to the owner, part owner or lessee, or his agent, a statement under oath of the number and names of every subcontractor or laborer in his employ and of every person furnishing materials, giving the amount, if anything, which is due or to become due to them or any of them for work done or materials furnished, and the owner, part owner or lessee, or his agent, may retain out of any money then due or to become due to the contractor, an amount sufficient to pay all demands that are due or to become due to such subcontractors, laborers and material men as shown by the contractor's statement, and pay the same to them according to their respective rights, and all payments so made shall, as between such owner, part owner or lessee, and...