Wildey v. Gillett

Brooke, J. (after stating the facts). We may say that we quite agree with the learned circuit judge in his disposition of this case, unless, as contended by defendant, it must be held that the failure of complainant to serve the requisite notice under 3 Comp. Laws, § 10713, is fatal to the whole proceeding. The latter part of that section reads: “Until the statement provided for in this section is made, in manner and form as herein provided, the contractor shall have no right of action or lien against the owner, part owner or lessee on account of such contract.” It is conceded in this case that the claim of lien was filed 40 days before the laborers in the employ of the contractor would have been barred from filing claims of lien, and the bill was filed to enforce the lien 10 days before the expiration of such time. We are clearly of opinion that this case is ruled by the following decisions: Sterner v. Haas, 108 Mich. 488 (66 N. W. 348); Martin v. Warren, 109 Mich. 584 (67 N. W. 897); Barnard v. McLeod, 114 Mich. 73 (72 N. W. 24); Wiltsie v. Harvey, 114 Mich. 131 (72 N. W. 134); Dittmer v. Bath, 117 Mich. 571 (76 N. W. 89); Kerr-Murray Manfg. Co. v. Power Co., 124 Mich. 111 (82 N. W. 801). It is said on behalf of complainant that the rule laid down in these cases has been modified by this court in Walker v. Syms, 118 Mich. 183 (76 N. W. 320), and Bollin v. Hooper, 127 Mich. 287 (86 N. W. 795). In the first case cited the action was assumpsit commenced more than two years after the building was completed and accepted, and long after any subcontractor, laborer, or material-man could claim a lien. Moreover, the court in that case said: “ The plaintiff in this case is not attempting to assert a lien under the mechanic’s lien law.” In Bollin v. Hooper, supra, the action was likewise assumpsit, and the question was not raised in the trial court. See, also, Adams v. Brick & Block Co., 154 [158] Mich. 448 (117 N. W. 932, 129 Am. St. Rep. 484). The lien statute, being in derogation of the common law, must be strictly construed at least to the point when the lien attaches. Hall v. Erkfitz, 125 Mich. 332 (84 N. W. 310). It is the claim of complainant that the defendant did not apprise him until the trial of the cause that he intended to avail himself of the defense now insisted upon. We think that the portion of the answer quoted supra was sufficient. The judgment must be reversed, and the bill of complaint dismissed, with costs of both courts. Moore, C. J., and Steers, McAlvay, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.