Sterner v. Haas

• Decision Date: 26 February 1896
• Citation: 66 N.W. 348,108 Mich. 488
• Court: Michigan Supreme Court
• Parties: STERNER v. HAAS ET AL.

66 N.W. 348

108 Mich. 488

STERNER v. HAAS ET AL.

Supreme Court of Michigan

February 26, 1896

Appeal from circuit court, Genesee county, in chancery; Charles H Wisner, Judge.

Action by Edwin Sterner against Catharine Haas and others. Decree for defendants, and plaintiff appeals. Affirmed.

Durand & Carton, for appellant.

Ed. S Lee and Kohler & Bentley, for appellees.

HOOKER, J.

The complainant was engaged in the business of plumbing and gas fitting, and did the work of steam heating, plumbing roofing electric wiring, etc., upon the residence of the defendants. Subsequently he filed his statement of lien, for a balance of several hundred dollars, and the bill in this cause was filed to enforce it. The trial court determined that he was a contractor, and as such obliged to give to the owner a statement under oath containing the names of all laborers who performed work upon the premises, and material men who furnished materials therefor, with the amounts due them respectively, if anything, under section 4 of Act No. 179 Pub. Acts 1891. The lien law is in derogation of the common law, and all rights under it are statutory, and cannot be extended beyond the provisions of the statute. Wagar v. Briscoe, 38 Mich. 587; Electric Co. v. Norris, 100 Mich. 502, 59 N.W. 151. Section 4 expressly provides that the contractor shall have no right of action until such statement is furnished. In the face of this express provision, we are unable to say that the proceeding can be sustained without compliance with it, when the lienor is a contractor. It is contended that the failure to furnish this statement should not be held fatal in this case, inasmuch as all material and labor is shown to have been paid for, and the defendants have never requested such statement; but if a waiver can ever aid a complainant, against the express condition upon which this section permits a suit to be brought to enforce the lien (which we do not determine), it can only be under circumstances amounting to an estoppel. It then becomes necessary to ascertain whether the complainant was a contractor, or merely a material man, and therefore not required to serve the statement mentioned in section 4. See Avery v. Board, 71 Mich. 538, 39 N.W. 742; Staffon v. Lyon (Mich.) 62 N.W. 354.

Counsel for the complainant contend that their client was a material man, and not a contractor. They say that the testimony shows that he did not make a...