Wyo. Park Lumber & Fuel Co. v. Ark

• Decision Date: 19 December 1939
• Docket Number: No. 71.,71.
• Citation: 291 Mich. 496,289 N.W. 228
• Court: Michigan Supreme Court
• Parties: WYOMING PARK LUMBER & FUEL CO. v. VANDER ARK et al.

291 Mich. 496

289 N.W. 228

WYOMING PARK LUMBER & FUEL CO.

v.VANDER ARK et al.

No. 71.

Supreme Court of Michigan.

Dec. 19, 1939.

Suit to foreclose mechanics' lien by the Wyoming Park Lumber & Fuel Company against Harvey Vander Ark and others. From the judgment, the plaintiff appeals.

Affirmed.Appeal from Circuit Court, Kent County, in Chancery; Glenwood C. Fuller, Judge.

Argued before the Entire Bench.

Warner, Norcross & Judd and Renihan & Lilly, all of Grand Rapids, for plaintiff and appellant.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for defendants and appellees.

BUTZEL, Chief Justice.

On February 10, 1937, Wesley W. Perrin, as ‘contractor,’ entered into a written agreement with defendants Harvey Vander Ark and wife, as ‘purchasers,’ in which it was provided that Perrin was to build a house on two lots owned by him in a subdivision adjoining the city of East Grand Rapids, Michigan, in accordance with drawings and specifications made a part of the contract. On purchasers making the payments provided for, Perrin was to execute and deliver to them a warranty deed of the premises. The purchasers agreed to pay $4,900 for the lots and the completed house in the following manner: $1,050 on the execution of the contract, two payments of $1,000 each at certain times during the progress of the building, and the balance of $1,850 within 10 days after the completion and approval of the work. Accordingly, the Vander Arks made the down payment and additional payments of $1,000 and $200, a total of $2,250. Over objection it was shown that $900 of the down payment was considered as the price of the lots and foundation walls which had already been built several years prior to the time of the purchase. When Perrin was paid the second $1,000, he executed a deed which was placed in escrow, to be released to defendants on instructions from Perrin or his attorney. The deed was eventually secured by Vander Ark on September 23, 1937, and recorded by him.

Before entering into the contract with the Vander Arks, Perrin consulted Mr. Schowalter, the president of plaintiff company, who examined the plans for the building and estimated that $2,153.73, including tax, would be required for materials to complete the work. The estimate, which was dated February 9, 1937, was captioned: ‘Estimate to Perrin Company, Address City, Harvey Vander Ark Job.’ Schowalter testified that he delivered this estimate to the Vander Arks but they deny such delivery. The testimony supports the finding of the trial judge that plaintiff dealt exclusively with Perrin or his employees, furnished lumber and materials for the building on his order, and charged him for them when delivered. The judge also found that Perrin told Schowalter that he had sold the property to the Vander Arks, that he was building the house for them and that he would give them a deed when the purchase money was paid. Perrin explainedthat he was leaving this deed with his attorney. Mr. Schowalter admitted that Perrin told him that the deed was left in escrow but he claimed that Perrin assured him that it would not be delivered to defendants until plaintiff's claim had first been satisfied.

During the course of construction Perrin became insolvent and was unable to continue the work. With Perrin's knowledge and consent the defendants proceeded to raise additional money to meet current and future expenses for labor and materials. This involved a substantially greater expense than the Vander Arks had anticipated; by September 23, 1937, they had spent $6,563.25. On that date they secured the deed from the secrow agent with Perrin's consent. On the same day, Schowalter demanded payment of plaintiff's account from Perrin and the latter thereupon executed an order addressed to Harvey Vander Ark directing him to pay plaintiff the amount of its bill. Although this order was mailed to defendants, the date of receipt does not appear. The evidence was conflicting whether Schowalter called upon Vander Ark at his hom on September 23rd. On October 15th, Schowalter saw a public notice of the recording of the deed from Perrin to defendants. Five days later Vander Ark received by registered mail a notice that plaintiff had been furnishing building materials and that its claim therefor was superior to the rights of the Vander Arks under the deed. The trial judge found, and it is supported by the record, that this was his home on September 23rd. On October of plaintiff's intention to claim a lien as provided for by Comp.Laws 1929, § 13101 (Stat.Ann. § 26.281).

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