a subcontractor may be assigned either before or after perfection of a lien, it follows as a necessary sequence that the assignee of such a claim acquires the same right as was possessed by his assignor to enforce collection, and he is equally entitled to claim a lien and to proceed to its enforcement. § 24. Contractors. The contractor who performs his contract and complies with the necessary prerequisites or conditions precedent is entitled to claim lien, unless in the contract he has granted away that right or has by some act or omission waived the right or has become estopped to assert it." The contractor's lien may include the amounts due from him to his subcontractors, laborers and materialmen, though where the latter 4. §25 of Act 179 of 1891, C. L. 1915 (14820), How. 2nd Ed. $13790, C. L. 1897 (10734), 27 Cyc. 255-261; Wilkinson on Mechanics' Liens, pp. 9-10. 5. 27 Cyc. 83; Wilkinson on Mechanics' Liens, pp. 8-11. Upon distinction between contractor and subcontractor, see 27 Cyc. 92-93. A contractor under proper circumstances who furnishes materials may be considered to be a materialman. Smalley v. Gearing, 121 Mich. 190 (200), 79 N. W. 1114, 80 N. W. 797. A plumber and gas fitter furnishing material and labor for plumbing, roofing, heating and wiring a building, "in pursuance of a certain contract" with the owner as stated in his claim of lien, was held a contractor rather than a materialman, though no aggregate price for the work and material was agreed up on. Sterner v. Haas, 108 Mich. 488, 66 N. W. 348. Where a company contracted with the defendant to furnish the latter a steel gas-holding tank "all delivered and erected on foundation" provided by defendant, to be paid for part man. on delivery of material, part during erection, and balance on completion, so that by the terms of the contract, labor was to be performed on the premises, and such labor was in fact performed after the last of the material had been furnished, such company was held a contractor and not a materialKerr-Murray Mfg. Co. v. Kalamazoo Heat, Light & Power Co., 124 Mich. 111 (114), 82 N. W. 801. Where a mortgagor deeded his property to the mortgagee, a building and loan association, taking back a land contract for a consideration representing the amount of the mortgage and a further sum which the association agreed to furnish him to complete a building already in process of erection on the premises, such mortgagor-vendee does not stand in the position of a contractor and such association (mortgagee-vendor) does not stand in the position of owner, so as to entitle one furnishing labor and material at such mortgagorvendee's request to a lien. Fuller v. Detroit Loan & Building Ass'n, file liens, that would diminish the contractor's lien pro tanto.® § 25. Subcontractors, Materialmen and Laborers. All subcontractors, materialmen and laborers,' who perform service or labor or who furnish materials are entitled to the protection of the statute. This is a protection which may not be waived for them by the contractor. The question of who is a subcontractor or materialman, as distinguished from a contractor, often becomes material, as certain prerequisites to the obtaining and enforcement of a lien exist in cases of contractors which do not exist in cases of subcontractors and others. The lien is a direct one in behalf of the persons entitled to it and not by subrogation to the rights of the original contractor, and the claimant is not bound by any stipulation as to the acquisition of lien or waiving the right to lien contained in the original contract to which he is not a party, except as to the contract price. The word "materialman" as used in the law, is construed to include all persons by whom any materials are furnished in or for building, altering, improving, repairing, erecting, or ornamenting, or putting in any house, building, machinery, wharf or other structure or walk or walks.10 119 Mich. 71 (73), 77 N. W. 642. 6. Halpin v. Garman, 192 Mich. 71, 158 N. W. 29, 23 D. L. N. 421-422; 27 Cyc. 84. 7. See 27 Cyc. 81-83, 96-100; 49 L. R. A. 255. Subcontractors and materialmen and their rights to lien in general. Jones on Liens, 3rd Ed. §§1283-1309; Rockel on Mechanics Liens, §§53-70; Boisot on Mechanics' Liens, §§198-199; Phillips on Mechanics' Liens, 3rd Ed. $844-52, 57-65b, 243-247; Houck on Law of Liens, §§96129; Overton on Liens, §§551-553. In Michigan the subcontractor or materialman regardless of degree is entitled to lien. See 27 Cyc. 98-100. Every person under the contractor performing any fixed part of the contract is a subcon tractor in the absence of statutory definition. Jones on Liens, 3rd Ed. §1283. Who is a laborer within a statute giving right to lien. Notes, 27 Am. & Eng. Ann. Cas. 138-141; 18 L. R. A. 305. 8. For cases bearing upon the distinction between contractors and subcontractors, laborers and materialmen, see §5 herein. 9. 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; 27 Cyc. 84-85. 10. §29 of Act 179 of 1891, C. L. 1915 (14824), How. 2nd Ed. §13794, C. L. 1897 (10738). See cases where parties have been held to be materialmen, §5 herein. The word "laborer" is construed to include any mechanic, workman, artisan or laborer, employed in or about any such work as hereinbefore specified." In the distribution of payments a contractor furnishing materials was held to be a materialman,12 and manufacturers selling materials made in their own shops were held materialmen.13 One agreeing with a contractor to manufacture and furnish cement blocks, using the contractor's machine to make them and delivering them ready for use where required but without undertaking to perform a part of the original contract, was held a materialman." One furnishing lockers for use under a contract which was indefinite and lacking in detail, but substituting his own definite proposition for the lockers furnished, which offer was accepted and the goods furnished in accordance therewith, was regarded as a materialman;15 but one furnishing material and labor for plumbing, roofing, heating and wiring a building, though no aggregate price was agreed upon, was held to be a contractor.10 § 26. Other Persons. All others than those within the designations above given, who furnish material or perform service pursuant to or in execution of the contract are entitled to liens. This would permit the acquisition of lien by architects in certain cases1 and possibly by those transporting materials to the 11. §29 of Act 179 of 1891, C. L. 1915 (14824), How. 2nd Ed. $13794, C. L. 1897 (10738). See §5 herein. 12. Smalley v. Gearing, 121 Mich. 190 (200), 79 N. W. 1114, 80 N. W. 797. 13. Kerr-Murray Mfg. Co. v. Kalamazoo Heat, Light & Power Co., 124 Mich. 111, 82 N. W. 801. 14. Kuenzel v. National Construction Co., 159 Mich. 133, (135), 123 N. W. 801. 15. People v Title Guaranty & Trust Co., 154 Mich. 614, 118 N. W. 586. 16. Sterner v. Haas, 108 Mich. 488, 66 N. W. 348. See §5 herein, also McMonegal v. Wilson, 103 Mich. 264 (266), 61 N. W. 495. 17. Johnson v. O'Neill, 181 Mich. 326, 148 N. W. 364, 150 N. W. 835. As a general rule the architect who prepares the plans and specifications and superintends the construction of the work is entitled to a lien, but simply providing the plans and specifications has been held not sufficient. Rockel on Mechanics' Liens, §16; Boisot on Mechanics' Liens, §116; Phillips on Mechanics' Liens, $158; Jones on Liens, 3rd Ed. $1367. point of use, though it is doubtful whether other freight transportation charges could be added except as a part of the claim of some contractor, subcontractor or materialman.18 18. See §19, note 51 and au thorities cited thereunder. CHAPTER V. CONTRACTS UNDER WHICH LIENS PERMITTED, AND CHARACTER AND EX TENT OF LIENS PERMITTED § 27. In General. THEREUNDER.* 28. Formalities Required in Making Contract. 29. The Contract as Limiting the Extent of Lien. 30. Contract Provision Against Liens. 31. The Absence of Express Contract Provisions Extending to All Conditions. 32. Lien for Additional Work and for Extras. 33. Notice of Furnishing Under Section 1 of the Lien Law. 34. Defective Performance or Delay, Rights Upon. 35. Defective Performance or Delay; Recoupment of Damages therefor by Owner. 36. Acceptance by the Owner. 37. Abandonment or Failure to Perform by Contractor. 38. Abandonment by Owner or Failure to Perform, Rights Upon. 8 27. In General. A mechanic's lien or a right to a lien cannot arise in the absence of a contract, express or implied, to which the owner of the interest in the property sought to be reached is a party.1 Liens upon new structures may, however, be *In general as to the subjects comprehended in Chapter V, see Title "Mechanics' Liens," 34 Cent. Dig. 8860-111, 143-147 and 13 Dec. Dig. 8855-78, 111. 1. §1 of Act 179 of 1891 as amended by Act 199 of 1893, Act 143 of 1897, Act 17 of 1903 and Act 121 of 1909, C. L. 1915 (14796), How. 2nd Ed. §13766, C. L. 1897 (10710), Merrill v. Brant, 175 Mich. 182 (184), 141 N. W. 550; Clark v. Raymond, 27 Mich. 456 (459); Willard v. Magoon, 30 Mich. 279; Scales v. Griffin, 2 Doug. 54 (66); John Wallace Sons Co. v. Wilkinson, 181 Mich. 693 (695-699), 148 N._W. 166; 27 Cyc. 50-51; Holland Furnace Co. v. Hartig, 181 Mich. 342 |