F. M. Sibley Lumber Co. v. Doran

Bird, J. Plaintiff furnished lumber and materials to defendant Wilson with which to erect a dwelling house for defendants David and Ella Doran on Distel avenue, in the city of Detroit. The estimated cost thereof was $4,400. In order to secure the balance due upon this contract plaintiff filed a statement of lien on April 25, 1914. It appeared at the hearing that the first of the materials was furnished on October 28, 1913, and that the last was furnished on February 2, 1914. These dates of delivery were shown by a statement which had been made by the bookkeeper from the receipted delivery slips. At the conclusion of the proofs defendants’ counsel made the point that the statement of lien was filed more than 60 days after the last of the materials was furnished and therefore the lien was invalid. This led to some discussion between counsel, after which the chancellor held that the filing was too late, consequently there was no lien. Later a motion for rehearing was filed, argued, and granted. Further proofs were taken bearing upon the actual date the last of the materials was furnished. Plaintiff, to establish its contention that an error was made in copying the receipted delivery slips, produced them. The slip in question bore date of February [282] 24th. The bookkeeper of plaintiff testified that the last slip was copied by him as February 2d, whereas it should have been the 24th of February. Other delivery slips were produced showing deliveries on February 4th and 5th, which were numbered respectively 4768 and 4805, whereas the slip in question was number 5032. It was' argued from this that number 5082 must have been made at a later date than February 2d because the slips, were numbered consecutively by a registering machine. In opposition to this contention, defendants testified they moved into the house on February 12th, and that no materials were furnished after that date. Their testimony in this respect was corroborated by no less than six witnesses, some of whom were members of their family while others were their neighbors. The explanation of the error by the bookkeeper of plaintiff appears to be reasonable and convincing. The testimony of defendants and their witnesses is also convincing. The materials which appear to have been the last delivered were several feet of pordh rail. The absence of several feet of porch rail would be something which would likely be noticed by the members of the family as well as the act of Wilson or his foreman in supplying it. Therefore, there is not much chance for them to be mistaken in their testimony. If plaintiff is right in its contention these parties must have deliberately falsified concerning it. To say the least, the question is involved in serious doubt. It was the duty of plaintiff to furnish the burden of proof upon this question. We think it haá failed to meet this burden and therefore its case must fail. The conclusion reached by the chancellor must be affirmed, with costs to the defendants Doran. Ostrander, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.