Sacchetti v. Reoreation Co.

• Decision Date: 04 January 1943
• Docket Number: No. 48.,48.
• Citation: 7 N.W.2d 265,304 Mich. 185
• Parties: SACCHETTI v. REOREATION CO.
• Court: Michigan Supreme Court

304 Mich. 185

7 N.W.2d 265

SACCHETTI

v.REOREATION CO.

No. 48.

Supreme Court of Michigan.

Jan. 4, 1943.

Suit in equity by Louis Sacchetti against The Recreation Company, a corporation, for accounting on a building contract and enforcement of a material and labor lien, in which defendant filed a cross-bill to recover damages for plaintiff's nonperformance of the contract. Decree for plaintiff, and defendant appeals.

Decree affirming the accounting and declaring the lien void.Appeal from Circuit Court, Dickinson County, in Chancery; Frank A. Bell, Judge.

Before the Entire Bench.

Ray Derham, of Iron Mountain, for appellant.

Edward J. Dundon, of Iron Mountain, for appellee.

BOYLES, Chief Justice.

Bill of complaint was filed in the circuit court for Dickinson county to obtain an accounting on a certain contract, and to enforce an alleged material and labor lien, under 3 Comp.Laws 1929, § 13101 et seq. (Stat.Ann. § 26.281 et seq.). (Subsequent amendment by Act No. 266 Pub.Acts 1941 [Stat.Ann.1942 Cum.Supp. § 26.281 et seq.], has no application to the case at bar.)

The bill of complaint alleges that the defendant was the owner of certain vacant lots in Iron Mountain, Dickinson county, that in 1939 defendant contracted for plaintiff to excavate on said land for a foundation and to build new basement walls and a concrete floor, for $1,500; that after plaintiff had partly completed the work defendant stopped the work and entered into a new contract for plaintiff to enlarge the excavation to include additional property, build foundation walls and concrete floors, and set wood joists according to certain blueprints, for $1,700, plus payment for what work had already been done. Plaintiff claims that after part performance he was again prevented from completion by defendant, that the work was completed by a third party and accepted by defendant, and that plaintiff had fully performed his contract until prevented. The bill alleges that plaintiff gave defendant a statement under oath pursuant to statute, to comply with 3 Comp.Laws 1929, § 13104 (Stat.Ann. § 26.284), that he filed a statement of account and the amount due him, with the register of deeds, that the amount due him is $1,084.85, and the bill seeks foreclosure of a lien on defendant's land for that amount. Defendant answered, denied the material allegations of the bill, claimed that the plaintiff had abandoned the job, denied that the statement of lien complied with the statute or that it had been filed in the office of the register of deeds within 60 days after the last of the labor had been performed or materials furnished. Defendant also filed a cross bill asking for damages for plaintiff's failure to perform his contract, and set up as a special defense that plaintiff had failed to comply with the statute in furnishing the statement and filing a statement of lien.

At the conclusion of the trial the circuit judge dictated an opinion analyzing the testimony and after discussing the various claims and counterclaims concluded that a balance of $299.55, plus $15 interest, was due plaintiff, ‘and the plaintiff will be held to have established a lien for that amount.’ Decree was entered for plaintiff in the amount of $314.55, giving plaintiff a lien on the premises as described, ‘in accordance with the statute in like case provided.’ The decree contains the usual provisions for sale of the land by circuit court commissioner at public sale in event of nonpayment, deed to the purchaser, period of redemption, and disposal of surplus, if any, from sale.

On appeal, defendant insists that the claim of lien was not filed in time to satisfy the statute, that the statement of lien was grossly and intentionally excessive and incorrect, and that the court erred in his findings as to the amount due. Appellee has not filed a brief in this court.

It is conceded that plaintiff had a contract to excavate, build walls and a cement floor or bed for bowling alleys for the defendant. Plaintiff started work in November and had performed to the extent of $285 when the second contract increased the amount of work and the contract price was raised to $1,700. Plaintiff continued work in December and testified that the defendant moved sand, brick and other material into the basement so he could not complete the work without moving it out, that defendant refused to move it, that plaintiff waited a month or more, and that on January 23 he wrote defendant that he was waiting for notice to complete the job. Defendant, claiming that the plaintiff abandoned his contract, went ahead and had some other contractor complete the work. Plaintiff claims that after the floor was laid he finished his work, pointed up the wall, put the joists in place on March 7, 8, 9, 1940. The sworn statement and claim of lien was filed and served on May 7. Subsequently (June 1) plaintiff admitted an error in the statement, amounting to $11.25, by the inadvertent omiss on of an item for some used blocks that he had not put on his books.

There was a sharp issue of fact whether plaintiff abandoned the work, or was forced to discontinue by acts of the defendant. The record is plain that plaintiff waited for some time to complete the work, and performed essential services on March 7, 8, 9, 1940, toward completing his contract. The statement and claim of lien filed and served May 7 was within the statutory period of 60 days from the date on which the last of the materials were furnished and the last of the labor performed. The evidence is sufficient to sustain the finding of the circuit judge that the work done on March 7, 8 and 9 was a necessary part of the contract and done in good faith. Zilz v. Wilcox, 190 Mich. 486, 157 N.W. 77. A question of fact was raised and the testimony supports the finding.

“Whether labor and material furnished within the statutory period but...