Lazenby v. Wright , 250 Mich. 203 ( 1930 )

Arthur D. Wright and Marie Wright were contract purchasers of land in Detroit on which they wanted to build a dwelling. They made an agreement with one Robert A. Smith for erecting the house, and to that end assigned their vendees' interest to him. Smith made contracts with materialmen and laborers, among them the plaintiff, who did carpenter work, and plaintiff's assignor, Shelp, who did mason work. When the house had been "roughed in" the job was abandoned by the contractor. A number of mechanics' liens were filed, among them that of plaintiff and of Shelp. The vendor in the land contract gave notice of forfeiture to the Wrights and in summary proceedings had judgment for restitution.

The Wrights again became purchasers of the property and settled with defendant Restrick Lumber Company, lien claimant in largest amount, by giving it a mortgage on the property. Plaintiff filed bill to foreclose his lien and that of his assignor and had decree, from which defendants have appealed.

It is urged that the statements of lien are defective in naming Smith as contractor, and that in fact a corporation in which Smith was interested was the contractor. The finding of the trial court that Smith was in fact the contractor is approved. The Wrights dealt with him, and assigned their contract interest to him. Every lienor named Smith as a contractor. He made the contracts. He was the contractor.

It is contended plaintiff's right to enforce lien was cut off by the forfeiture of the Wrights I interest as vendees and by the judgment in the summary proceedings. The statute provides, 3 Comp. Laws 1915, § 14798:

"Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title, shall have a lien therefor upon such [building] buildings or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as aforesaid. In case the property covered by the lien is held by the vendee in a land contract, and he surrenders or forfeits his rights thereunder, the person or persons holding such liens may be subrogated to the rights of such vendee, as his rights existed immediately before such surrender or forfeiture, by performing the covenants contained in such contract within 30 days after such forfeiture or surrender is made."

Plaintiff claims no right to subrogation under the last sentence of the quoted statute, so we are not concerned with whether he had notice of the forfeiture or of the proceeding for possession.

This was a new house. Under the first sentence of the statute plaintiff's right of lien on the house was not defeated by the forfeiture of the vendees' interest under the land contract nor by the judgment of restitution. The question is fully discussed in Washtenaw Lumber Co. v. Belding, 233 Mich. 608,

Plaintiff claims lien for the full amount due him. The Wrights had right to recoup damages, if any, for the contractor Is breach of contract. Smalley v. Gearing,121 Mich. 190. But they claim no damage in their pleadings and establish none in their proofs. They have not contended in pleading nor shown by proof that plaintiff ought to recover, if he recovers at all, less than the full amount. Delray LumberCo. v. Keohane, 132 Mich. 17. This question therefore is passed.

Plaintiff's contention that he is entitled to lien on both the land and the building on the allegation of conspiracy and fraud by or between defendants and others not parties hereto is without merit and calls for no consideration.

The decree will be modified to be against the building, not against the land, and, so modified, affirmed, with costs to defendants.

WIEST, C.J., and BUTZEL, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ., concurred.