lots other than those upon which the building was situated. Adams v. Central City Granite, etc. Co., 154 Mich. 448 (454-457), 117 N. W. 932.

The service of this statutory notice (p. 163) is designed to protect subcontractor, laborer, or materialman in case contractor's statement does not embody his claim. Smalley v. Ashland BrownStone Co., 114 Mich. 104 (108), 72 N. W. 29. Subcontractor's failure to serve statement on owner does not relieve owner from liability where he paid contractor in full without requiring sworn statement provided for by section 4 (C. L. 1915 §14799). Blitz v. Fields, 115 Mich. 675, 74 N. W. 186; Smalley v. Ashland BrownStone Co., 114 Mich. 104 (108), 72 N. W. 29; Green Bay Cut Stone Co. v. Fabry, 169 Mich. 544 (549), 135 N. W. 312. For form of this notice of furnishing, see Form No. 1 in Part II.

Owner not liable to lien claimants for greater amount than he contracted to pay original contractor and may set off damages for delay. Smalley v. Gearing, 121 Mich. 190 (197, 202, 205), 79 N. W. 1114, 80 N. W. 797; Wells v. Board of Education, 78 Mich. 270, 44 N. W. 267. After acceptance of building by owner as complying with contract, he cannot recoup against materialman for defects in construction. Hannah & Lay Co. v. Hartzell, 125 Mich. 177 (181), 84 N. W. 52. But mere taking possession cannot of itself be treated as unequivocal acceptance of performance. Gier v. Daiber, 148 Mich. 190 (193), 111 N. W. 773, Frohlich v. Klein, 160 Mich. 142, 125 N. W. 14. Where the contractor delayed performance and refused to proceed upon notice and the owner received bids and contracted with the lowest bidder for completion, in a proceeding by subcontractors to enforce a lien, held, the owner was entitled to offset against the

V.

original contractor or subcontractor the actual cost of completion, including sums necessarily paid for new plans. Yeomans Parker, 105 Mich. 323, 63 N. W. 316. It cannot be said that a particular course of construction is approved by owner because permitted by him without interference. Boots v. Steinberg, 100 Mich. 134 (137), 58 N. W. 657.

No lien is permitted where the contract was not performed according to its terms. Frohlich v. Klein, 160 Mich. 142, 125 N. W. 14; Evans v. Woodley, 173 Mich. 20, 138 N. W. 275. Abandonment by contractor does not preIclude liens of subcontractors and others to an aggregate which does not make the total cost exceed the contract price. Zilz v. Wilcox, 190 Mich. 486, 23 D. L. N. 24 (25), 157 N. W. 77; Delray Lumber Co. v. Keohane, 132 Mich. 17 (22), 92 N. W. 489.

The lien is direct in behalf of persons entitled and not by subrogation and claimant is not bound by stipulation as to acquisition of or waiving right to, lien in original contract to which he is not a party, except as to the contract price. Vaughan v. Ford. 162 Mich. 37 (45), 127 N. W. 280; Smalley v. Gearing, 121 Mich. 198, 79 N. W. 1114, 80 N. W. 797.

Payments by owner without requiring from contractor statement under section 4 are at owner's risk and his property is not relieved from lien because he believed that money previously advanced to materialmen on contractor's order paid them in full. Munroe v. Merrell, 113 Mich. 491, 71 N. W. 850. The owner is only entitled to protection as against persons unpaid, for such payments made without sworn statement as are distributed pro rata among all those entitled to participate. Fairbarn v. Moody, 116 Mich. 61, 74 N. W. 386, 75 Ñ. W. 469. See Vaughan v. Ford, 162 Mich. 37 (46), 127 N. W. 280. Though

payments by owner are founded on contractor's sworn statement, under section 4 (C. L. 1915 §14799), they must be distributed pro rata, among all claimants of whom he has notice, to protect against lien. Frohlich v. Carroll, 127 Mich. 562, 86 N. W. 1034. Payments without sworn statement, under section 4 (C. L. 1915 §14799), not distributed pro rata cannot be allowed in owner's favor as against materialman's lien. Greilick Co. v. Rogers, 144 Mich. 314 (317), 107 N. W. 885; Hannah & Lay Co. v. Hartzell, 125 Mich. 177 (180), 84 N. W. 52. The owner is relieved from liability to the extent to which his payments have been distributed among subcontractors, materialmen or laborers, though the money they received is not the identical money paid by owner to contractor. Where contractor furnishes materials, their value is to be included in determining amount distributed. Pro rata distribution among all claimants (of the same degree) is contemplated and owner is not entitled to credit for amount received by a claimant in excess of his proportionate share. Smalley Gearing, 121 Mich. 191 (199, 200, 201), 79 N. W. 1114, 80 N. W. 797. In determining cost of structure, in order to ascertain for what proportion of their claims claimants are entitled to liens, payments made without requiring statement from contractor, which went to pay for materials or labor actually going into the structure, are to be included. All lienor can claim is that the contract price (less any required deductions) be apportioned among those entitled and where cost of completed structure exceeds the contract price, a claimant is entitled to such proportion of his claim as the contract price bears

V.

to cost of completed structure. Godfrey Lumber Co. v. Cole, 151 Mich. 280, 114 N. W. 1018; Frchlish v. Ashton, 159 Mich. 265, 123 N. W. 1130. Balance remaining after allowing owner for payments properly distributed or made and ог damages deductions to which he may be entitled, if insufficient to pay claims in full, will be distributed among the claimants and unpaid claims, pro rata in proportion to the valid liens and other claims. Frohlich v. Ashton, 164 Mich. 132, (134), 129 N. W. 18; modifying same case in 159 Mich. 265, 123 N. W. 1130; Blitz v. Fields, 118 Mich. 85, 76 N. W. 118; Smalley v. Gearing, 121 Mich. 191, 79 N. W. 1114, 80 N. W. 797; Godfrey Lumber Co. v. Cole, 151 Mich. 280, 114 N. W. 1018; Kotcher v. Perrin, 149 Mich. 690, 113 N. W. 284. After the owner made payments to contractor without requiring statement under section 4 [C. L. 1915 (14799)], contractor abandoned his contract and owner completed the building. Held, the amounts paid by contractor to laborers and materialmen together with outstanding liens and cost of completion divided into the contract price, gives the per cent of his claim which each lienor is entitled to recover. Kotcher v. Perrin, 149 Mich. 690, 113 N. W. 284. Materialman receiving payments from contractor, while materials being furnished, who did not direct their application, had the right to apply them on charges other than those for materials entering into the building in question. Union Trust Co. v. Casserly, 127 Mich. 183, 86 N. W. 545; Grace Harbor Lumber Co. v. Ortman, 190 Mich. 429, 23 D. L. N. 73, (76), 157 N. W. 96; People v. Grant, 139 Mich. 26, 102 N. W. 226.

§2, as amended by Act 143 of 1897, C. L. 1915 (14797), How. 2nd Ed. §13767, C. L. 1897 (10711).

Mechanics' lien cannot be created against land held or being purchased to be held, in entirety by husband and wife, except under contract signed by both, nor has husband any interest therein during his lifetime to which lien can attach. Bauer v. Long, 147 Mich. 351, 110 N. W. 1059; McMillan v. Schneider, 147 Mich. 264, 110 N. W. 961; Restrick Lumber Co. v. Wyrembolski, 164 Mich. 71, 128 N. W. 1083; Sheldon, Kamm & Co., v. Bremer, 166 Mich. 578 (582), 132 N. W. 117; Burman v. Ewald, 192 Mich. 293 23 D. L. N. 449, 158 N. W. 853. The rule applies equally where the land is held by husband and wife under executory contract to purchase, and in the absence of wife's signature no lien attaches either to lot or structure. Frohlich v. Blackstock, 155 Mich. 604, 119 N. W. 906.

The constitution and statute prohibit lien attaching to homestead, unless arising under written contract signed by both husband and wife. Jossman v. Rice, 121 Mich. 270 (274-277), 80 N. W. 25; Burtch v. McGibbon, 98 Mich. 139, 56 N. W. 1110; John Wallace Sons Co. v. Wilkinson, 181 Mich. 693 (699), 148 N. W. 166; Holland Furnace Co. v. Hartig, 181 Mich. 342 (346), 148 N. W. 169.

The contract though in writing, must show intent to include the homestead interest to subject it to lien. Burtch v. McGibbon, 98 Mich. 139, 56 N. W. 1110; Hammond v. Wells, 45 Mich. 11, 7 N. W. 218. A homestead exemption may be claimed in land purchased for and upon which a homestead is to be constructed. Lamont v. LeFevre, 96 Mich. 175 (178), 55 N. W. 687; Deville v. Widoe, 64 Mich. 593 (594-595), 31 N. W. 533; Mills v. Hobbs, 76 Mich. 122 (125-126), 42 N. W. 1084, A contract for house to be used as homestead when completed must be signed by wife to give basis for lien upon the land,. though title in third person, though under section 3 lien may attach to house separately and be enforced by its sale and removal. Holliday v. Mathewson, 146 Mich. 336, 109 N. W. 669. The home

stead right is limited to premises actually occupied, where several dwellings are erected on one lot. Frohlich v. Carroll, 127 Mich. 562, 86 N. W. 1034. A homestead can be claimed if premises used partly for business purposes and partly as a dwelling. King v. Welborn, 83 Mich. 195 (197), 47 N. W. 106; Lamont v. LeFevre, 96 Mich. 175 (178), 55 N. W. 687. The excess over $1,500 may in certain cases be subject to lien, though wife does not sign contract. McAllister v. Des Rochers, 132 Mich. 382 (383-385), 93 N. W. 887; Scott v.