La Tour v. Hibbler , 188 Mich. 140 ( 1915 )

Ostrander, J.

(after stating the facts). If Hibbler had answered the original bill so as to present the issues, first, that complainant had wrongfully interfered with his performance of the contract, and her conduct was responsible for his apparent default, second, that he had filed a mechanic’s lien, and that it ought to be enforced in this proceeding, and, third, that the job was nearly completed when he was excluded and when completed by complainant it would appear that there was a balance due to him, and the court had decided these issues, excepting only the last, adversely to him, and the last in his favor, there could be, I think, no .question about the propriety of awarding him a judgment for any sum found due to him. Hibbler did not answer, and Greig, his assignee, was admitted to answer for him. If his answer had presented the issues above indicated, then, even assuming there is grave question about his right to intervene, the decree would not be reversed. All interested parties would be concluded. As mere matter of administration of the law, the decree in this court would be affirmed, unless, as. is claimed, it is too large. The trouble is that Greig represents the right of Hibbler with respect only to the masonry contract — the De Winter subcontract. He has from Hibbler an assignment only of his claim, demand, and right of action “so far as pertains to labor and material to be supplied by me for the masonry portion of my contract,” and the extras. There was no masonry portion of his contract. His contract is single. The structure is to be erected for a certain sum of money.

Counsel for appellee say:

“Hibbler and De Winter were parties defendant to complainant’s bill of complaint, and both testified in the case on behalf of cross-complainant. Neither of these persons is making any claim to any part of this money or against complainant for any money whatever. They both concede that the money has been assigned to Greig and should be paid to him, as decreed by the court.”

The place where this concession may be found is not indicated, and I have not found it. What appears is that upon complainant’s showing there remained unexpended of the contract price, when the building was completed, the sum of $609.76. Greig’s demand exceeded this sum. The court rendered a decree in his favor for $487.50. Why for this sum does not appear. Complainant claims ,that the work of Hibbler was inferior, and not according to the contract. Testimony introduced by her is to the effect that to make the building conform to specifications will cost more than $1,200. What the court found with regard to the claim for extras does not appear.

The reasons which would support affirmance of the decree, if it appeared that Kibbler’s entire demand was involved, are reasons for reversing it and dismissing the cross-bill of Greig if it is not involved and settled, and all parties in interest concluded, by the decree. The record does not furnish to complainant a sufficient release of Hibbler’s possible demands, nor afford her security from possible further litigation.

If Hibbler is of the disposition indicated in the brief for appellee, and will either give satisfactory assurances to appellant, or will, giving notice, make and file with the clerk of this court a release and satisfaction of all demands and claims whatever growing out of the contract and its performance, the decree may be affirmed. In such event the appellant will recover from Greig, appellee, the costs of this appeal. If no release is given within 20 days after the entry of decree in this court, the decree below will be reversed, and the cross-bill of Greig dismissed, with costs of both courts to appellant.

Brooke, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. The late Justice McAlvay took no part in this decision.