People ex rel. Wheeling Corrugating Co. v. W. L. Thon Co.
| Citation | 307 Mich. 273,11 N.W.2d 886 |
| Decision Date | 29 November 1943 |
| Docket Number | No. 73.,73. |
| Parties | PEOPLE, for Use and Benefit of WHEELING CORRUGATING CO. v. W. L. THON CO. et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by the People of the State of Michigan, for the use and benefit of the Wheeling Corrugating Company, a West Virginia corporation, against W. L. Thon Company and the Central Surety & Insurance Corporation to recover the value of materials furnished by plaintiff to first named defendant in connection with construction of a highway by the State Highway Department. The trial court entered a judgment of no cause of action as against last named defendant and awarded a judgment for plaintiff against first named defendant, and the plaintiff appeals.
Affirmed.Appeal from Circuit Court, Wayne County; Theodore, J. richter, judge.
Before the Entire Bench.
Max Kahn, of Detroit, for appellant.
Mason, Davidson & Mansfield, of Detroit (Walter A. Mansfield, of Detroit, of counsel), for appellee.
This is an action instituted by plaintiff to recover from defendants the value of certain materials furnished by it to the W. L. Thon Company, hereinafter called the contractor, in connection with the construction of a certain highway in the counties of Clare and Osceola by the State Highway Department. The contractor had furnished a bond with defendant surety company as surety pursuant to the provisions of Act No. 187, Pub.Acts 1905, Act No. 384, Pub.Acts 1925 and Act No. 167, Pub.Acts 1927, 3 Comp.Laws 1929, Sec. 13132 et seq., Stat.Ann. Sec. 26.321 et seq. The trial court entered a judgment of no cause of action as against the surety company and awarded a judgment in favor of plaintiff against the contractor. Plaintiff appeals.
The date of furnishing of the last of the materials by plaintiff for the project was October 12, 1940. It is conceded that notice under the provisions of section two of the act was not given by plaintiff to the highway department until March 7, 1941, more than 60 days after the date of the last delivery of materials, and it is further conceded that the surety company was not damaged by failure to give timely notice in accordance with the statutory provisions.
The trial court held that the failure to give the notice within the 60 day period was fatal to plaintiff's claim against the surety company.
Section two of the statute under consideration, prior to amendment, required notice to be given by a subcontractor ‘before payment is made for the work or materials furnished by him’. The notice was to be given to the board of officers or agents contracting on behalf of the political subdivision. The act further provided that he should notify the principal contractor of the giving of the notce and that ‘whenever this shall have been done [he] shall be entitled * * * to the benefit of the security given by the principal contractor’. No provision was made for giving notice to the surety. In People v. Traves, 188 Mich. 415, 154 N.W. 120, this court commented upon the fact that the then existing law required no notice to the surety and intimated that if section two of the act as it then stood was intended to protect the surety, some notice to the latter would have been required. It is apparent that the court in that case felt that as the purpose of the notice was not clear, a very liberal consruction should be given to the provision in question and in the absence of a showing of damage to the surety because of failure to give notice strictly in accord with the statute, this defense was not available to the surety. In People v. Connell, 195 Mich. 77, 161 N.W. 844, a similar liberal construction of the enactment was given, and it was held that as the surety had shown no injury by a belated notice, it had no cause for complaint. See, also, People v. Rosewarne, 247 Mich. 22, 225 N.W. 590.
By Act No. 384, Pub.Acts 1925, section two of the act was amended. A subcontractor was required to give a similar notice as he had theretofore and in addition notify the surety on the bond that he had done so. The substantial and material change was the addition of the following provision as to materialmen, who had not before been required to give a notice.
‘All others, excepting those furnishing labor, relying upon the security given by the principal contractor, shall within sixty days of the date of the actual furnishing of materials or supplies serve a written notice in duplicate upon the board of officers or agents contracting on behalf of the state, county, city, village,...
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...within the time limits prescribed by the statute. This Court established the fourth element in People ex rel. Wheeling Corrugating Co. v. W.L. Thon Co., 307 Mich. 273, 11 N.W.2d 886 (1943). In that case we denied recovery to a claimant who was sixty days tardy in giving notice of the comple......
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