Webster v. Cooper Dev. Co.
| Decision Date | 03 April 1934 |
| Docket Number | No. 113.,113. |
| Citation | 266 Mich. 505,254 N.W. 186 |
| Parties | WEBSTER et al. v. COOPER DEVELOPMENT CO. et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Ingham County; Charles B. Collingwood, Judge.
Action by Clyde I. Webster and W. E. Webster, copartners doing business as H. P. Webster & Sons, against the Cooper Development Company and another. From a judgment for plaintiffs, the named defendant appeals.
Reversed without new trial.
Argued before the Entire Bench.
Shields, Silsbee, Ballard & Jennings, of Lansing (Stanley H. Fulton, of Lansing, of counsel), for appellant.
G. E. McArthur, of Eaton Rapids, for appellees.
The bill alleges plaintiffs furnished one Don G. Pratt, as contractor, materials to build a house on lands belonging to Cooper Development Company, beginning September 25, 1929, and ending November 29, 1929. October 3, 1929, plaintiffs gave notice to Cooper Development Company they were furnishing the materials to Pratt. They claim a balance of $256.56. January 28, 1930, plaintiffs filed notice of lien in the office of the register of deeds of Ingham county. January 28, 1930, they served a copy of this notice of lien on the Cooper Development Company and filed a certified copy of proof of service thereof with the register of deeds. Defendant Cooper Development Company claims the last material was furnished to Pratt November 29, 1929, admits it received the notice of furnishing of material to Pratt; alleges it requested plaintiffs to furnish duplicate invoices; denies the claim of lien and the amount due; denies the statement filed by plaintiffs with the register of deeds complied with the law, and denies plaintiffs ever acquired a valid lien against their premises; alleges it gave a bond in the sum of $512.72 with the Fidelity & Deposit Company of Maryland, as surety, to release the lien, and thereby it was released; and alleges plaintiffs' sole remedy is at law. By stipulation signed by the parties, the case was transferred to the law side of the court, where judgment was entered for $301.03 and costs, and defendant Cooper Development Company appeals, claiming plaintiffs failed to file proof of service of notice of their intention to claim a lien; failed to furnish a statement to appellant, as required by section 13108, Comp. Laws 1929; alleges error in the description of the land against which a lien is claimed, error in the statement of the lien, and failure on the part of plaintiffs to introduce in evidence the bond upon which the action is brought upon which plaintiffs sought and had recovery.
Appellant claims plaintiffs acquired no lien upon the premises in question which could be made the subject of foreclosure; allege the Mechanics' Lien Law (Comp. Laws 1929, § 13101 et seq.) is in derogation of the common law; that rights under it are statutory and may not be extended beyond the plain provisions of the statute. Wagar v. Briscoe, 38 Mich. 587;Sterner v. Haas, 108 Mich. 489, 66 N. W. 348;Huebner v. Lashley, 239 Mich. 50, 214 N. W. 107.
Plaintiffs rely upon Smalley v. Terra-Cotta Company, ...
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Burton Drywall, Inc. v. Kaufman
...the registrar of [69 MICHAPP 90] deeds as provided in section five of this act.' (Emphasis supplied.) 4 Webster v. Cooper Development Co., 266 Mich. 505, 507, 254 N.W. 186 (1934), construed this provision to require compliance with the notice provisions of the act as a condition precedent t......
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Burton Drywall, Inc. v. Kaufman
...statute had been amended to state that there was no right of lien "unless and until" notice was served. 11 Webster v. Cooper Development Co., 266 Mich. 505, 507, 254 N.W. 186 (1934), construed "unless and until" as requiring notice as a condition precedent to the perfection of a mechanic's ......
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J. Altman Companies, Inc. v. Saginaw Plumbing & Heating Supply Co., Docket No. 11455
...this act.' (Emphasis added.) 1929 CL § 13101. 4 Page 711 The effect of this language was considered in Webster v. Cooper Development Co., 266 Mich. 505, 507, 254 N.W. 186, 187 (1934), where a lien was challenged for failure to comply with the statute by filing a proof of service. Therein th......
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Wyo. Park Lumber & Fuel Co. v. Ark
...of plaintiff's lien. If defendants were entitled to notice, failure to give it is fatal to plaintiff's claim. Webster v. Cooper Development Co., 266 Mich. 505, 254 N.W. 186. In view of the substantial payments which defendants made on the contract calling for a deed to the property during t......