Opinion
Docket No. 126, Calendar No. 37,027.
Submitted January 19, 1933.
Decided April 4, 1933.
Appeal from Genesee; Sample (George W.), J., presiding. Submitted January 19, 1933. (Docket No. 126, Calendar No. 37,027.) Decided April 4, 1933.
Bill by Wellman Hibbard against Margaret R. Finch and Union Industrial Trust Savings Bank to foreclose a mechanic's lien and for an accounting. From decree dismissing foreclosure and granting accounting, plaintiff appeals. Affirmed as to foreclosure, reversed as to accounting, and remanded.
Carton Gault, for plaintiff.
Brownell Gault, for defendant.
The bill prays foreclosure of a mechanic's lien and accounting. The defendants are the owner and her mortgagee. The trial judge found no valid lien, and decree was entered accordingly. The accounting feature of the bill was retained, and a certain sum found to be due plaintiff, principal contractor, from the owner, Margaret R. Finch, which was decreed to be paid. Defendant offered no testimony, the case being disposed of on motion at conclusion of plaintiff's proof, and he has appealed.
Plaintiff began erecting the dwelling house on or about June 1, 1927. Mrs. Finch moved into the house the following November. She claims an agreement to build and complete the house for $8,500. During the summer of 1927 plaintiff gave her a writing stating that he agreed to build at a fixed profit of $700, estimated cost to include profit, $8,500. A small amount of repair work was done in fall of 1929. On January 2, 1930, plaintiff put some counter-flashing on the roof, total cost $1.75, $1 of which was for labor, which plaintiff, although otherwise indebted to his employee, was careful to pay him that day and by check. Within the statutory period of 60 days thereafter, plaintiff filed statement of lien, claiming $4,069.29. The trial judge was of the opinion that the furnishing of January 2, 1930, was not in good faith, not within the contract, but to gain ground for filing a statement of lien. Upon a review of the evidence, as stated, together with character of the work done and material furnished on January 2, 1930, the significant payment of the labor item, the lapse of time after the building was accepted by the owner, we are in accord with the conclusion of the trial judge that the statement of lien was not filed in time. 3 Comp. Laws 1929, § 13105.
Both sides request, as in the trial court, that the accounting feature be retained and accounting made. No question of jurisdiction; no question of joining accounting with statutory foreclosure of mechanic's lien, is presented. We are not required to raise the points. Cummings v. Schreur, 236 Mich. 628.
The writing given by plaintiff as stated does not fix a full contract price. It states rather an estimated price. We cannot find on this record a contract for a fixed price, nor should accounting be had on this incomplete record. The cause should be remanded that full accounting of the matter may be had.
Decree dismissing foreclosure bill is affirmed, and as to accounting reversed, and remanded, without costs.
McDONALD, C.J., and POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.