Bezold v. Beach Development Co.

Fead, J. Plaintiffs had decrees of foreclosure of mechanics’ liens for materials furnished the Jefferson Beach Amusement Company, vendee under land *695 contract, which was adjudged bankrupt and its interest in the premises sold to defendant Beach Development Company, which later acquired vendors’ title. Fred Bezold. — Claimant filed statement of lien for furnishing “labor and materials in and for the construction of certain roadways and parking grounds,” etc. He furnished cinders. At the hearing, he claimed part of them were used in the construction of buildings and he had decree for such part. The statute, 3 Comp. Laws 1929, § 13101, permits liens for labor and materials used in “any house, building, machinery, wharf or structure, * * * foundation, cellar or basement” for such structure, or “sidewalks or wells.” This designation would not include general improvements, roadways or parking grounds. “Where a claim includes both lienable and nonlienable items, and by reason of the method of stating them the nonlienable items cannot be segregated from the general aggregate, the entire lien must fail.” 18 R. C. L. p. 942. See, also, 40 C. J. p. 247. Claimant’s statement of lien goes even further than the rule in that it affirmatively shows that all the cinders he furnished were for nonlienable purposes, and he had no lien. Decree is reversed, with costs. Multiplex Builders Supply Company. — Claimant filed statement of lien for “labor and material in and for the erection and construction of a certain house and buildings, etc., and amusement park.” It furnished sewer pipe and cement which went into buildings, gravel used partly for buildings and *696 partly for roads, and drain tile to drain the land. It conld not estimate the amount of gravel used in buildings. Construction of roads and draining the land were nonlienable purposes. The statement of lien included both lienable and nonlienable items without means of separation and was void under the above authorities. See, also, J. E. Greilick Co. v. Taylor, 143 Mich. 704. Decree is reversed, with costs. Detroit White Lead & Color Works. — The proof of service of statement of lien recited that an officer “personally served a true copy of the attached lien upon the Jefferson Beach Amusement Company by handing a copy of said lien to Arthur Oehmig;” that he personally served Theodore Halsig and Agnes Halsig, William F. Baecker, and that he served Max R. Mueller, Marie A. Mueller, and William T. Burridge by posting on the premises. The lien claimant has the burden of proof of compliance with the statutory requirements to establish a lien. R. C. Mahon Co. v. Ford Motor Co., 256 Mich. 255; Roberts v. Miller, 32 Mich. 289. Oehmig, Halsig, Baecker, and Mueller were vendor owners of the premises. Neither in the pleadings or proofs was it alleged or shown that Oehmig was an officer or agent of the Jefferson Beach Amusement Company, upon whom service could be made. Plaintiff did not sustain the burden of proof of valid service necessary to establish a lien. Wiltsie v. Harvey, 114 Mich. 131; Zilz v. Wilcox, 190 Mich. 486. Decree is reversed, with costs. Clark, C. J., and McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred.