Enterprise Bed Co. v. South American

Brooke, J. (after stating the facts). Much argument is indulged in by the attorneys for both parties and many cases are cited upon the question as to whether the “timely notice” mentioned in the statute must be a written notice. Under our view of the case it becomes unnecessary to construe the statute in this regard. The statute creating the lien is peculiar, and, so far as the principal contractor is concerned, no notice whatever is required. The lien is established by the statute as soon as the work is done or material is furnished. Delaney Forge & Iron Co. v. The Winnebago, 142 Mich. 84 (105 N. W. 527, 113 Am. St. Rep. 566); Perkins v. The Golden Girl, 185 Mich. 200 (151 N. W. 660). By the proviso the lien can only attach in favor of a subcontractor when he has given to the [475] owner, agent, master, or clerk of the said craft, “ ‘timely notice’ of his or their said claim.” As soon as the owner has received such “timely notice” the subcontractor “shall have a lien upon such craft pro rata, for his or their said claims.” A notice under this statute, whether verbal or written, is clearly “timely” if it is received by the owner at a time prior to payment by the owner to the principal contractor. It is conceded upon this record that at the time of the conversation between Lochlin, president of the plaintiff company, and Davis, president of the transit company, and on May 29, 1914, when the first letter was written, the defendant transit company had not paid the Associated Furniture Manufacturing Company for the goods in question, indeed such payment, if made at all, was not made until July 28, 1914, two months later. That Lochlin interviewed the president of the defendant transit company with the purpose of securing payment of the goods about to be shipped is not open to dispute upon this record. Assuming, then (although not determined), that a written notice is required under this statute, we come to a consideration of the letter of plaintiff dated May 29, 1914, to the defendant transit company. That letter refers to the conversation held between Lochlin and Davis a few days earlier, notifies the defendant company of the writer’s failure to secure Mr. Rice’s consent to the billing of the goods directly to the transit company, and requests defendant’s co-operation with reference to the debt. It is our view that this letter satisfies the requirement of the statute with' reference to notice, even though such notice must be in writing. It should be noted that the proviso of the statute does not refer to notice of a claim of lien, but simply requires “timely notice” to be given of a claim after which the lien attaches by virtue of the statute, in this respect differing from the mechanic’s [476] lien law (chapter 296, 3 Comp. Laws, 3 Comp. Laws 1915, chap. 244). It is very clear that the letter of May 29, 1914, gave to the defendant transit company circumstantial notice of the plaintiff’s claim. As soon as the defendant transit company received notice of the plaintiff’s claim, and that the same was unpaid, which information was conveyed to it m that letter, a lien attached to the vessel in favor of the plaintiff by operation of the statute, and thereafter the defendant transit company could not relieve itself of liability to the plaintiff by payment to the principal contractor. In this view of the case it becomes unnecessary for us to examine into the transaction between Rice, representing the Associated Furniture Manufacturing Company, and Davis, the president of the transit company, of to determine whether such transaction should be held to amount to payment. A verdict having been properly directed in favor of the plaintiff for the amount of the claim, the judgment is affirmed. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.