Hulburt v. Just

Montgomery, C. J. This is an appeal from a decree establishing a mechanic’s lien in favor of the complainant. The appeal is taken by Dollie B. Van Devanter, mortgagee. The premises involved were the property of Josiah E. Just, who died while the building for the construction of which the lien is asserted was in the course of construction. After the death of Mr. Just, the complainant offered to go on and complete the building; but the administrators preferred to have operations suspended, and this appears to have been assented to. Complainant filed a claim of lien for $1,938.78, and it is strenuously insisted by defendant’s counsel that the record shows that this claim was fraudulently made for an amount largely in excess of the amount due. The circuit judge found a lien in favor [339] -of complainant for the sum of $760.20. The disparity between the allowance and the claim is very great, but the complainant accounts for it in the following manner: When work was suspended on the building, complainant had on hand material which he had purchased for the completion of the contract amounting in value to $717.05, which, at the time of swearing to this claim of hen, he appears to have treated as a part of the building, and a portion of the expense already incurred. We think this was not evidence of bad faith. If also appears that, in figuring the amount due, complainant, through an oversight, failed to credit the Just estate for an item of $75 for a change in the plans. This leaves a discrepancy of $386.53; but it is -evident that the circuit judge disallowed certain items of extras on the ground that the contract had no.t been ■changed in writing, and that he did not adopt the complainant’s estimate as to the cost of completing the building. It does not follow that complainant’s claim in this respect was not made in good faith, and, on the whole record, we are not convinced of his bad faith in filing the claim. The mere overstatement, unless made in bad faith, does not defeat the lien. Gibbs v. Hanchette, 90 Mich. 661 (51 N. W. 691); Scheibner v. Cohnen, 108 Mich. 165 (65 N. W. 760). During the progress of the work, complainant overdrew his account at the Ionia County Savings Bank $1,300. Defendant’s counsel contend that the money was drawn from the bank under circumstances creating no liability •on the part of the complainant to the bank, but that the circumstances show that the credit was extended to Josiah IE. Just. Mr. Burletson, the assistant cashier of the bank, testified as to those payments as follows: liQ. When a check came in while Mr. Just was absent, —check of Hulburt drawn on this account, — I suppose you paid it without looking to see whether Hulburt had -overdrawn his account or not ? “A. We were instructed to. UQ. Who instructed you to do this ? [340] “A. Mr. Just. “Q. So that in fact this account of $1,300 was Just’s account, wasn’t it ? “A. Yes, sir; that is where it rightly belongs. “Mr. Ellis: What do you mean by that, — that it was Just’s account ?' It was money he orally guaranteed to the bank ? “A. That was about it. “Q. Money that Hulburt drew, drawn on Hulburt’s checks ? “A. Drawn by Mr. Hulburt. “Q. The only thing the bank had to show for it was the oral guaranty of Mr. Just that he would make it good ? “A. He simply instructed us to pay Mr. Hulburt’s checks. “Q. That is all you know about it? “A. Yes, sir. “Mr. Morse: Did you pay Mr. Hulburt’s checks on Hulburt’s l-esponsibility or on Just’s order? “A. On Mr. Just’s order. “Mr. Ellis: Whom did you charge them to? “A. Mr.- Hulburt. “Q. And the account was kept with Hulburt? “A. Yes, it was in Hulburt’s name. “Q. When the checks were overdrawn, or paid, then Just would deposit more money ? “A. Yes, sir.” There was no testimony that the contract between complainant and the bank was other than it purported to be on its face; that is, an overdraft. In construing the testimony as to the effect of Just’s instructions to Burletson, it should be stated and kept in mind that Just had been cashier of the bank, and, although he had resigned to take a position as State banking commissioner, the position of cashier was left vacant, and he still presumed to speak with authority. We do not find that credit was given exclusively to Just, but think that complainant was legally bound on these checks. The circuit judge found due at the date of the decree $760.20, including interest, or about $700 of principal. We think the best testimony fixes the amount of the lien [341] without interest at $506.56. The decree will be modified to this extent, and affirmed. No costs will be allowed in this court to either party. The other Justices concurred.