Smalley v. Ashland Brown-Stone Co.

• Decision Date: 22 July 1897
• Citation: 72 N.W. 29,114 Mich. 104
• Court: Michigan Supreme Court
• Parties: SMALLEY ET AL. v. ASHLAND BROWN-STONE CO. ET AL.

72 N.W. 29

114 Mich. 104

SMALLEY ET AL. v. ASHLAND BROWN-STONE CO. ET AL.

Supreme Court of Michigan

July 22, 1897

Appeal from circuit court, Wayne county, in chancery; Oscar Adams Judge.

Action by William Smalley and others against the Ashland Brown-Stone Company and others. Judgment sustaining demurrer to the company's answer, and it appeals. Reversed.

H. H. & C. H. Hatch, for complainants.

A. G Pitts, for appellant, Ashland Brown-Stone Co.

Walker & Spalding (C. A. Kent, of counsel), for appellee Traugott Schmidt.

MONTGOMERY J.

Defendant Traugott Schmidt is the owner of a brick building in Detroit constructed in the summer of 1895. Complainants filed a bill to enforce a mechanic's lien. Defendant the Ashland Brown-Stone Company filed an answer, claiming the benefit of a cross bill. To this answer defendant Schmidt demurred, and the demurrer was sustained. Defendant the Ashland Brown-Stone Company appeals.

1. Some criticism is made of the practice of asserting a lien by an answer in the nature of a cross bill, but the right to do so is affirmed in Smalley v. Terra Cotta Co., 71 N.W. 466. Criticism is also made of the form of the answer, in that it does not pray for process; but, if it be assumed that the answer is in that respect defective, the question should be raised by special demurrer, and, as the defendant Schmidt has seen fit to demur generally, process would appear to be necessary for the purpose of bringing him before the court.

2. The answer of the stone company avers that material was furnished in the construction of the building, and that the amount was evidenced by two promissory notes, due, respectively, November 14, 1895, and November 20, 1895; that on the 7th of November, 1895, the stone company filed a claim of lien, setting forth that "there is justly and truly due to the Ashland Brown-Stone Company, from Joseph L. Gearing (the contractor), over and above all legal set-offs, the sum of $2,287.35, for which it claims a lien." It is contended that, as the claim consisted of notes not due when the lien claim was filed, it cannot be supported by or received under a claim of lien for an amount due. The statute (section 5, Act 179, Laws 1891) provides that the contractor or subcontractor who wishes to avail himself of the statute shall make and file with the register of deeds a just and true statement or account of the demand due him over and above all legal set-offs. A form is also given in the statute which provides for a statement that "there is justly and truly due defendant," etc. It is conceded that the word "due" is sometimes used to mean "owing," but it is insisted that in this connection it should be construed to mean "presently payable." We think this statute should not be so construed. If it be given this construction one having a lien for a demand not yet due could not literally comply with the provisions of section 5. This section should, we think, be construed in connection with sections 25 and 26 of the act, which provide for the enforcement of liens not presently due and payable. It is evident that it was not the intention to dispense with all notice by the holders of such liens; and as section 5 contains the only provision as to what such notice shall contain, and requires the claimant to make a statement of the demand due him, and as the word "due" is often used as synonymous with "owing," it must be inferred that it was employed in this sense in this connection. The case of Brennan v. Miller, 97 Mich. 182, 56 N.W. 354, relied upon by appellee, was decided under the Laws of 1885, which differ materially from the Laws of 1891. While there is language in the opinion which gives some color to defendant's contention, the case is mainly ruled upon other points.

3. The answer of the stone company does not aver that the claimant served the preliminary notice provided in section 1. It does not aver that the statement required by section 5 was filed with the register, and a copy served on the owner. This presents the question whether the notice required by section 1 is a condition precedent to the lien in favor of the subcontractor or laborer. The question is not free from difficulty. It is contended on behalf of defendant Schmidt that the provision for such notice is introduced by way of a proviso to the provisions of the statute declaring a lien and it must be admitted that this is not without force. However, it is held that the word "provided" does not always introduce a necessary condition. Chapin v. Harris, 8 Allen, 594; Stanley v. Colt, 5 Wall. 119; Railroad Co. v. Smith, 128 U.S. 174, 9 S.Ct. 47. The whole section should be considered for the purpose of determining the legislative intent. Section 4 provides, for the protection of the owner, that the original contractor shall furnish a statement under oath to such owner, giving the names of all subcontractors and laborers, together with the amount due or to become due to them. Section 1 provides that "the risk of all payments made to the original...