Stephens Lumber Co. v. Townsend-Stark Corp.
| Decision Date | 24 July 1924 |
| Docket Number | No. 67.,67. |
| Citation | 199 N.W. 706,228 Mich. 182 |
| Parties | STEPHENS LUMBER CO. v. TOWNSEND-STARK CORPORATION et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Macomb County, in Chancery; George W. Sample, Judge.
Action by the Stephens Lumber Company against the Townsend-Stark Corporation, the Electric Service Company, and others. From an adverse decree, the plaintiff and the Electric Service Company and others appeal. Affirmed in part, and decree ordered entered.
Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Lungerhausen, Weeks & Lungerhausen, of Mt. Clemens, for appellants.
Robert F. Eldredge, of Mt. Clemens, for Ullrich Sav. Bank.
Bert v. Nunneley, of Mt. Clemens, for Alexander Franklin Sarns.
William T. Kelly, of Mt. Clemens, for Vern L. Akey.
In this action the bill was filed to enforce four separate mechanics' liens on as many different parcels of property. On the hearing, by agreement, the suit was treated as including four cases, to be heard as one, the court to determine separately the several liens on the various parcels. The Townsend-Stark Corporation purchased the premises in question on land contract from A. Franklin Sarns for $4,800, no part of which was paid down. In April, 1920, it began the construction of four buildings, During the course of construction the Townsend-Stark Corporation and A. Franklin Sarns joined in four mortgages covering the four parcels, to the Ullrich Savings Bank, the mortgages aggregating $16,500. The plaintiff claims to have furnished lumber used in the buildings to the value of $6,851.07. The other lien claimants filed cross-bills claiming to have furnished hardware, plumbing, carpenter work, and other labor and material.
The circuit judge rendered a decree favorable to the claims of all of the parties except the Stephens Lumber Company, the Kruse Sons Company, the Electric Service Company, Walter Kindschy, and Edward J. Burk. As to these he held that they had no valid existing liens.
In regard to Stephens Lumber Company it is contended, first, that it is not entitled to a lien because it was not a materialman but a contractor, and did not file the affidavit which the statute requires of contractors.
‘The word ‘materialman’ as used in this act, shall be construed to include all persons by whom any materials are furnished in or for building, altering, improving,' etc. 3 C. L. 1915, § 14824.
Counsel for the defendants say that the plaintiff is a contractor because it agreed to furnish a certain quantity of lumber for a lump sum. It is true, that Mr. Williams, manager of the plaintiff company, on cross-examination, was led to characterize the agreement as one for the sale of a certain amount of material for a lump sum, but his conclusion is hardly borne out by the provisions of the agreement as previously related by him. What actually happened was that Mr. Townsend went to the plaintiff with a list of the lumber necessary for the construction of the houses, and the plaintiff agreed to furnish the material at the market price as of the day when the agreement was made. But, if a lump sum had been agreed upon, the plaintiff would not necessarily have become a contractor.
In People v. Powers, 108 Mich. 339, 66 N. W. 215, the defendants were trying to make a contractor out of a materialman because he had agreed to furnish material at a given price for the construction of a building. This court said:
In regard to the list furnished by Mr. Townsend, Mr. Williams testified:
‘The list did not contain things that had to be made by specification, but just all stock stuff, standard stuff that we carried, door frames, window frames, nothing that was not stock to my knowledge.’
The plaintiff was to do no work upon the premises. It was a materialman selling a marketable commodity which it kept on sale or manufactured to order for the use of others in the construction of buildings. It did not undertake to manufacture the material according to the builder's specifications but carried in stock the lumber which it agreed to furnish. The evidence shows that the Stephens Lumber Company was a materialman.
The plaintiff has established beyond question that it furnished lumber amounting to $6,851.07, all of which went into the construction of the four buildings on the premises in question. Its trouble has been to show by competent proof the amount it furnished for each building. For convenience the buildings are designated as the northeast bungalow, the northwest bungalow, the northeast two-family, and the northwest two-family.
The plaintiff first sought to show the material furnished for each building by receipted delivery tickets issued to its teamsters. So far as they are shown to be accurate, these tickets are competent evidence of the amount, the time and the place of delivery. Kuennan v. Fidelity & Guaranty Co., 159 Mich. 122, 123 N. W. 799.
In many instances, however, they appear to have been inaccurate, and if there had been no other competent evidence in support of the plaintiff's claims, the circuit judge would have been justified in his finding that--
‘As to the Stephens Lumber Company claims, the evidence is so confused and confusing, that it makes accurate computation absolutely indefinite and uncertain.
But there is other evidence which we think under the circumstances was competent, and which the court should have considered. We refer to the estimates of the two carpenters, who constructed the buildings. These men inspected the buildings, took measurements, and testified in detail to the amount of lumber from the Stephens Lumber Company, which went into the construction of each. They say that in making the estimate they followed certain standard rules established for the guidance of estimators by which they could accurately determine within 5 per cent. the amount of lumber in any of the buildings. The defendants strenuously insist that such testimony is not competent in a mechanic's lien case. There is some merit to the objection that it does not show the dates of delivery or the prices, but where these matters are established by independent evidence, we know of no reason why the estimates made under such circumstances should not be...
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...see: Stewart v. Cunningham, 1976, 219 Kan. 374, 548 P.2d 740; Drake Lumber Co. v. Lindquist, supra; Stephens Lumber Co. v. Townsend-Stark Corporation, 1924, 228 Mich. 182, 199 N.W. 706; Curlett v. Aaron, Del.1883, 6 Houst. 477.6 ABC, according to its lien statement, makes its claim as one f......
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...and install it in the structure-he is a contractor, and not a materialman. In the recent case of Stephens Lumber Co. v. Townsend-Stark Corporation, 228 Mich. 182, 199 N. W. 706,201 N. W. 213, Mr. Justice McDonald thus tersely stated the rule: ‘If one combines labor on the premises in connec......
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...and not a materialman." ¶34 The same idea is thus expressed by the Supreme Court of Michigan in the case of Stephens Lbr. Co. v. Townsend-Stark Corp., 199 N.W. 706, 201 N.W. 213. ¶35 Touching the alleged indefiniteness of the contract, we have heretofore held in Sherbondy v. Tulsa Boiler & ......
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Strom Const. Co. v. Raymond
...to the date plaintiff commenced work under its contract, plaintiff's lien takes precedence over them, also. Stephens Lumber Co. v. Townsend-Stark Corp., 228 Mich. 182, 199 N.W. 706, 201 N.W. The appeal as presented to us does not call for determination of priorities between the other liens ......