Strom Const. Co. v. Raymond
| Decision Date | 13 April 1959 |
| Docket Number | 72,Nos. 71,s. 71 |
| Parties | STROM CONSTRUCTION COMPANY, a Michigan corporation, Plaintiff and Appellant, v. William I. RAYMOND, W. Helen Raymond, and Marinus Wierenga, John Wierenga, Geertje Wierenga, d/b/a Wierenga Brothers, a Michigan copartnership, Defendants. Floyd R. SIEVERS, also known as Mike Sievers, Plaintiff, v. Frank G. DEANE, as Trustee in Bankruptcy of William I. Raymond, Bankrupt; Helen Raymond; Marinus Wierenga, John Wierenga, and Geertje Wierenga, copartners, d/b/a Wierenga Brothers; Strom Construction Company, a corporation of Grand Rapids, Michigan; Cascade Lumber Company, a corporation of Kent County, Michigan; Marshall Hulbert; and Donald C. Dilley, as Circuit Court Commissioner of Kent County, Michigan, acting Circuit Court Commissioner in Ottawa County, Michigan, Defendants. |
| Court | Michigan Supreme Court |
Deeb, Dunn & Elferdink, Grand Rapids, for Strom Const. Co.
Jacob Ponstein, Grand Haven, for Wierenga Bros.
Stuart Hoffius, Grand Rapids, for Marshall Hulbert.
Linsey, Shivel, Phelps & Vander Wal, Grand Rapids, for Cascade Lumber Co.
Before the Entire Bench.
Defendant William Raymond owned real estate on which he desired to build a track and facilities for conducting automobile races. Defendants Wierenga put in the race track. In payment, Raymond and wife gave them two mortgages on the property, the first dated June 12, 1953, recorded June 24, 1953, and the second dated September 12, 1953, recorded October 1, 1953. Raymond engaged plaintiff Strom Construction Company, hereinafter called plaintiff, to construct a shell consisting of a concrete crash wall along the track, two concrete end walls and a side wall of concrete blocks. The shall was to serve as the foundation or base for a grandstand, to consist of steel bleachers on a steel framework.
Plaintiff commenced work on the shell on June 8, 1953, and finished it on July 7, 1953. The end walls of the shell were not of a uniform height from one end to the other, but were stepped up to permit a passageway at the foot of the grandstand. There was to be no roof over the shell, partly because that would have increased insurance rates. After completion of the shell a roof could not have been added without major changes on the walls. Raymond had no intention of making a building of it.
On September 1, 1953, plaintiff filed its statement of account and lien in the office of the register of deeds and on October 20, 1953, filed its bill of complaint to foreclose that lien.
After plaintiff had completed the shell, Raymond abandoned the idea of erecting a steel grandstand on it. Instead, he had wooden bleachers built on the opposite side of the track. After that, there was nothing further to be done on the project as Raymond planned it at that time. He opened the gates and conducted races there.
Later in the fall of 1953 an auctioneer proposed to Raymond that the shell be converted into a building by covering it with a roof and installing windows, doors, a heating system and other details, so that it could be used as a place for selling automobiles at auction. Raymond decided to do so. For that purpose defendant Cascade Lumber Company hereinafter called defendant, furnished materials between November 28, 1953, and January 12, 1954. Sievers, plaintiff in the second suit, performed the labor, from December 18, 1953, to February 5, 1954, in constructing the roof and building and installing window frames, doors, etc. In order to build the roof, it was necessary to run a beam across the 200 foot length of the shell supported by the end walls and four upright timbers set upon concrete footings in the ground. The joists used to support the ceiling or roof could not have been used to support bleachers in a grandstand.
Defendant filed with the register of deeds a statement of account and lien on March 9, 1954, and Sievers did likewise on March 15, 1954. On June 28, 1954, Sievers brought suit to foreclose his lien. The two cases were consolidated for trial.
The trial court held the mentioned liens and mortgages, together with another mortgage given defendant Hulbert after plaintiff's lien had attached, to be simultaneous mortgages under the mechanics' liens act and decreed that the premises be sold and the proceeds distributed pro rata among the holders of them.
Plaintiff alone appeals, contending that its lien is entitled to priority over the other claims. There is no cross-appeal on file in this Court. Briefs have been filed only on behalf of plaintiff and defendant.
Controlling provisions of the statute are contained in Parts First and Fourth of C.L.1948, § 570.9 (Stat.Ann. § 26.289), which read:
'First, As between persons claiming liens under this statute, the several liens upon the same property attaching by reason of work, labor or materials furnished in carrying forward or completing the same building or buildings, machinery, structure or improvement, shall be deemed simultaneous mortgages. * * *
As presented on appeal here, the only issue is whether plaintiff's lien takes precedence over the other liens and mortgages. This gives rise to the question whether plaintiff's construction of the shell and Sievers' and defendant's furnishing of labor and materials for converting it into a building constituted 'labor or materials furnished in carrying forward or completing the same building, * * * structure or improvement.' In its opinion the trial court said that 'the structure was the same although its purpose and use were drastically altered.' It based its holding on what it denominated the spirit and principle of the mechanics' lien law as expressed in McClintic-Marshall Co. v. Ford Motor Co., 254 Mich. 305, 236 N.W. 792, 793, 77 A.L.R. 807, in the following dicta:
'The Mechanics' Lien Law is framed upon the theory that those who perform work or furnish material which enters into and enhances the...
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