this defendant, furnished certain other and additional materials and labor not essential to the completion of said work, and that his said claim of lien is based upon and dated from the said furnishing and that if the filing of said claim of lien be dated from the last actual furnishing or performance in good faith under the contract, it was not, and cannot be construed to be, filed within the statutory sixty day period, wherefore this defendant is entitled to a discharge thereof and to the removal of the cloud caused thereby upon his title.

That under the said contract this defendant was entitled to a structure as follows (state details); that the said structure was not erected in accordance with such contract in this, that (state details); That this defendant did not at any time consent to or acquiesce in any change or alteration in said contract or in any variation in the terms thereof; that thereby and in consequence thereof no right to lien under such contract arose, and the claiming of lien upon said premises is inadequate and insufficient to create a lien and the defendant is entitled to a discharge of the same; that by reason of such altered and changed construction the said defendant has been injured and damaged in this, that (state details) and is entitled to damages and to a deduction from the agreed price on account thereof; that he has demanded a structure in accordance with such contract or, in lieu thereof, a deduction from the contract price sufficient to compensate him for the deviation therefrom and that said demands have been refused. (Or if payments have been made on the contract equal to the value of the structure to defendant, payment for damages for breach of the contract may be alleged.).

No. 27. Crossbill by Owner for Defective Performance, etc.

(Entitle Court and Cause.) ·

The answer of defendants William and Fredericka Klein to the Bill of Complaint of Simon Frohlich, doing business as the Frohlich Glass Company.

Defendants William and Fredericka Klein, reserving to themselves all right of exception to said bill, for answer thereto say:

First-These defendants admit paragraphs one and two of said bill.

Second-These defendants admit that plaintiff furnished the factory work for the building referred to in said bill, but deny that said material so furnished by plaintiff was according to the requirements of the plans and specifications. That said materials were inferior in quality to that required by the specifications and were not properly kiln dried as required by the contract and specifications. That as a result of said materials not being properly kiln dried the doors have shrunk to such an extent that they have become worthless, and much of the carpenter work throughout the building is rendered unsatisfactory by reason of the shrinkage of the materials furnished by plaintiff.

Third-These defendants neither admit nor deny the allegations contained in paragraphs four and five of the bill, but leave plaintiff to his proofs thereof.

Fourth-These defendants deny the allegations contained in paragraph six of the bill, and deny that plaintiff furnished the material and performed the work upon said building according to the plans and specifications, and further deny that these defendants accepted the said building. They admit that they have taken possession and are now occupying the same.

Five-These defendants neither admit nor deny paragraphs seven, eight and nine of said bill, but leave plaintiff to his proofs thereof.

And these defendants, Wm. Klein and Fredericka Klein, further answering, claim the benefit of this answer as a cross-bill, and ask the Court for affirmative relief against the said plaintiff, and the defendants Gustav A. Hansel and William Schmidt, co-partners as Hansel & Schmidt, and represent to the Court as follows:

1. These defendants purchased from Theodore Goren

flo lot fifty-five (55) of Gorenflo's subdivision, said lot being situated at the southwest corner of Mt. Elliott Avenue and Warren Avenue, in the City of Detroit; that on the 21st day of March, 1906, they entered into a written contract for the construction of certain buildings, a true copy of which said contract is hereto attached and marked "Exhibit A".

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2. That according to the terms of said contract the said Hansel & Schmidt agreed to furnish all labor and material to construct said buildings according to the plans and specifications prepared by Hans Gehrke, architect; that said work was to be done in a first-class and workmanlike manner, and said buildings when completed should be first-class in workmanship and material, and said contractors agreed to make perfect any defects that were apparent within one year after the completion of said building.

3. That the defendants, William and Fredericka Klein, have paid or caused to be paid to the said Hansel & Schmidt, contractors, the sum of Five Thousand Nine Hundred Fifty-three Dollars ($5,953.00), leaving a balance in their hands due upon said contract of One Hundred and Ninetytwo-Dollars ($192).

4. That the said contractors performed the work of constructing said buildings in an unworkmanlike manner, and furnished materials inferior to those specified and required by the contract and specifications, viz: The cellar is not of the required uniform height; the cement walls are not plastered with cement mortar, as required, so that the basement is wet after heavy rain storms and the water stands upon the cellar floor; that the tile drains and sewer have never worked perfectly, and that the kitchen sink and laundry tubs are almost constantly blockaded; that the store windows are not properly set in putty as required, and are in a leaky condition; that the doors have shrunk to such an extent that they have become worthless; that the finishing lumber has never been properly sandpapered or finished; that the entire finishing, lumber, doors and frames, etc., was not properly kiln dried; that said woodwork has never been

properly painted, oiled or varnished; that the material and workmanship throughout the entire building is inferior to the requirements of the contract and specifications; that the plaster is badly popmarked and cracked, and that the plaster used in the bathrooms is not of the quality or kind required by the specifications; that the head-room going upstairs is not sufficient; that the skylight on roof and the transom over the front store windows and doors are not completed; that the windows do not open or shut properly; that the flour bin was not properly constructed and by reason thereof became broken; that the plaster in the pantry does not meet the window casing and is unfinished; that the chimneys have not been properly plastered on the inside; that the drip board on the kitchen sink leaks; that the transom window and lift was not put into the hall leading upstairs as provided by the specifications. That by reason of the inferior material and workmanship employed in the construction of said building, the defendants, William Klein and Fredericka Klein, have been damaged to the extent of about One Thousand Dollars.

5. Wherefore, these defendants, William Klein and Fredericka Klein, pray that the plaintiff and the said defendants Gustav Hansel and William Schmidt, doing business as Hansel & Schmidt, may be decreed to pay to the said William Klein and Fredericka Klein whatever sum shall appear to be due to them upon the taking of said account, together with all costs of these proceedings.

6. That the above named plaintiff, and parties defendant, in this cause may be requested to make full and direct answer to this defendants' answer in the nature of a cross-bill, according to the rules and practice of this court.

7. And that these defendants may have such other and further relief in the premises as equity may require, and to the Court shall seem meet, and these defendants will ever pray, etc. (Signed) WILLIAM KLEIN11 FREDERIKA KLEIN

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11. This form used in Frohlich v. Klein, 160 Mich. 142. Other paragraphs of the crossbill may be added as follows:

(In case the owner damaged because the building not completed on time:) That the said contract required the work thereunder to be completed and turned over to this defendant on or before the

... day of.....

........

19. ...; that time was of the essence of the contract and was so regarded by both of the parties thereto; that without fault or omission on his part and without sufficient, reasonable or proper excuse or justification upon the part of the said plaintiff, the said structure was not completed or turned over upon the date so fixed nor until the ..day of

...

19...., and that the damages to this defendant on account of such delay and of such violation of the terms of said contract reasonably amount to the sum of $......... (show how defendant damaged), for which he is entitled to affirmative relief and to a decree or judgment against the said plaintiff.

(In case the cumulated cost to the owner, upon abandonment by the contractor, exceeds the contract price:) That the said structure was completed by this defendant in a workmanlike and economical manner, with the attempt to keep the same within the contract price, but notwithstanding said attempt the reasonable outlays, costs, disbursements and legal and enforcible claims and liens on account thereof amounted to the sums stated, which exceed the contract price by $.... and that for said excess this defendant is entitled to affirmative relief and to a decree or judgment against the said plaintiff.

No. 28. Crossbill by owner to Make Surety Company a Party Defendant and to Obtain Relief against it.

(Entitle Court and Cause.)

This defendant, reserving to himself all right of exception to said bill of complaint, for answer thereto says:

(Admit or deny, as the case may require, stating the defense or defenses relied upon.)

This defendant, further answering and claiming the benefit of a cross-bill says: That on the

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