work and expense by the contractor in performing some duty incumbent upon the owner, in the absence of an express understanding as to the same may be included in the lien; likewise, when covered by the specifications.25 And the contractor may recover for extras of this nature wrongfully charged to him although he did not formally ask credit for such items.26 Where the owner made changes in the plans of an office building so as to make it contain more stores than the contract under the original plan called for, such changes were properly treated as extras, for which the claimant, the architect, could recover additional compensation.27 Where claimant was compelled to use a substantially larger amount of material in a substituted plan than originally planned upon, and where he went to extra trouble and expense in pumping out water which had flooded a basement as a result of the acts of the contractor and the acts of an independent contractor under the orders of such contractor, he may include such extras in his lien.28

$33. Notice of Furnishing Under Section 1 of the Lien Law.

Το

Take notice, that the undersigned is furnishing to certain

to wit

on the following described property, viz.:

for

a certain

situated

Co.

25. Malcomson - Houghton v. Gregorian Building Co., 191 Mich. 678, 23 D. L. N. 405 (408), 158 N. W. 126; Johnson v. O'Neill, 181 Mich. 326, 148 N. W. 364, 150 N. W. 835.

26. Malcolmson-Houghton Co. v. Gregorian Building Co.; 23 D. L. N. 405 (408), 158 N. W. 126.

27. Johnson v. O'Neill, 181 Mich. 326 (328), 148 N. W. 364, 150 N. W. 835. Where changed plans

were agreed upon after bids were received on the original plans but before the contract was let the architect's services in preparing them were properly allowed as extras, whether such changes were ordered and made after such bids were received or after the contract was let. Id. pp. 331-332.

28. Vaughan v. Ford, 162 Mich. 37 (41-44), 127 N. W. 280.

834. Defective Performance or Delay, Rights Upon.

In general the right to lien is predicated upon the contract and full performance in accordance therewith," though where there is a good faith attempt to comply with the contract, a lien will not be denied for minor defects in material or workmanship the existence of which do not indicate a purpose to defraud, which might have been overlooked, and which might have been remedied if attention had been directed to them.30 Where the construction is not in accordance with the contract and the noncompliance furnishes a materially different structure than that called for by the contract, neither the contractor nor the subcontractor participating in the violation of the contract can successfully claim lien, even though the architect furnished a certificate of completion.3

31

§ 35. Defective Performance or Delay; Recoupment of Damages therefor by Owner.

For any failure or omission in the performance of the contract, as for undue delay or defective materials or workmanship, the statute provides that the owner, part owner or lessee shall be entitled to recoup his damages. But he cannot recover under a plea of set-off or recoupment, for

29. Substantial performance under the contract is, however, generally sufficient. McMonegal v. Wilson, 103 Mich. 264 (266, 268), 61 Ń. W. 495; Jossman v. Rice, 121 Mich. 270 (273-274), 80 N. W. 25; Johnson v. O'Neill, 181 Mich. 326 (331), 148 N. W. 364, 150 N. W. 835. Where the contract provided that the building should be constructed to the satisfaction of the owner, failure to so complete it will preclude a lien unless the owner accepts the work as satisfactory. Boots v. Steinberg, 100 Mich. 134 (139), 58 N. W. 657. See also Evans v. Woodley, 173 Mich. 20, 138 N. W. 275.

30. Gier v. Daiber, 148 Mich.

32

190 (193-194), 111 N. W. 773; Frohlich v. Carroll, 127 Mich. 561 (565), 86 N. W. 1034; 27 Cyc. 85-87. A failure to complete the building in minor details, caused by the unjust and unreasonable demands of the owner, will not preclude a lien by the contractor. McMonegal v. Wilson, 103 Mich. 264 (266, 268), 61 N. W. 495. See: Kunze v. Jones, 200 Mich. 453, 166 N. W. 904 (905-906).

31. Frohlich v. Klein, 160 Mich. 142 (145-147), 125 N. W. 14. Upon the effect of the architect's certificate of completion see: $36, Acceptance by Owner.

32. §1 of Act 179 of 1891 as amended by Act 199 of 1893, Act 143 of 1897, Act 17 of 1903 and

any damages caused by his own negligence.33 No damages can be recouped by an owner unless affirmative relief is asked in his pleadings.34

As an offset to recoupment of damages by the owner, as for delay in completing the building or for defective workmanship or materials, the contractor or claimant may show (1) that such delay was caused (a) by the acts or omissions of the owner, or (b) by changes in construction made by the owner directly or through the architect; (2) that the alleged defect in material or construction was due (a) to the carelessness or negligence of the owner or (b) to the owner's failure, by himself or through the architect, to perform some duty incumbent upon him;35 (3) that the

Act 121 of 1909; C. L. 1915 ($14796), How. 2nd Ed. (§13766), C. L. 1897 ($10710). Smalley v. Gearing, 121 Mich. 190 (202), 79 N. W. 1114, 80 N. W. 797; Germain v. Stanton School District, 158 Mich. 214 (218-220), 122 N. W. 524, 123 N. W. 798; Wells v. Board of Education, 78 Mich. 260 (270-271), 44 N. W. 267. The owner may recoup his damages for admitted defects in the building without furnishing evidence of the expense of remedying such defects, especially where the facts are particularly within the knowledge of the claimant. Gier v. Daiber, 148 Mich. 190 (195-196), 111 N. W. 773.

33. Johnson v. O'Neill, 181 Mich. 326 (330), 148 N. W. 364, 150 N. W. 835. The owner cannot complain that he is not allowed to recoup his damages for a contractor's failure to perform, where, disallowing unauthorized payments to the contractor, more than enough remains to pay his damages and the claim allowed to the lien claimant. Greilick Co. v. Rogers, 144 Mich. 313 (317), 107 N. W. 885. (See, however, explanation of this case in Godfrey Lumber Co, v. Cole, 151 Mich. 280 (282), 114 N. W. 1018).

34. See Koch v. Sumner, 145 Mich. 358, 108 N. W. 725; Reedy Elevator Mfg. Co. v. Peck, 149 Mich. 657 (667), 113 N. W. 300; Scott v. Keeth, 152 Mich. 547 (550), 116 N. W. 183. See Form No. 27, Part Three.

35. Johnson V. O'Neill, 181 Mich. 326 (329, 330), 148 N. W 364, 150 N. W. 835. MalcomsonHoughton Co. v. Gregorian Building Co., 191 Mich. 678, 158 N. W. 126, 23 D. L. N. 405 (408). In Johnson v. O'Neill, supra, damages were claimed for defective plastering; the contractor defended on the ground that the damage was caused by failure to heat the building, a duty resting upon the owner in the absence of any reference to it in the contract. The court disallowed these damages, saying (p. 329): "It is clear that the contractor was

36

owner has accepted the building from the contractor as complying with the contract; or (4) that the owner was present from time to time, inspecting the work as it progressed, and that the materials used were selected, in part at least, at such owner's request or upon his recommendation or with his acquiescence, and that he later took possession of the house, although protesting." An owner cannot recoup his alleged damages for loss of rent because of undue delay in completion of the building where he has waived his right to insist upon completion upon the agreed date, 38

§ 36. Acceptance by the Owner.

The owner's acceptance of the building or of the work done as satisfactory will, of course, preclude him from recouping any damages. This acceptance must, however, be clearly made out and be unequivocal, and cannot be implied from the taking of possession only, but the taking of possession must be considered in connection with all the other circumstances.89

under no obligation, under his contract, to supply heat. The building was being erected in midwinter. * * * Not having, in the contract, provided that the builder should furnish the heat, we think the owners must be held to have assumed that duty."

36. Hannah & Lay Mercantile Co. v.. Hartzell, 125 Mich. 177 (181), 84 N. W. 52. As to the effect of acceptance of the building or work by the owner, see $36.

37. Gier v. Daiber, 148 Mich. 190 (195), 111 N. W. 773. See Kunze v. Jones, 200 Mich. 453, 166 N. W. 904 (906).

38. Kotcher v. Perrin, 149 Mich. 690 (692), 113 N. W. 284. Stevens v. Garland, Mich. 164 N. W. 516.

39. Gier v. Daiber, 148 Mich. 190 (193), 111 N. W. 773; Frohlich v. Klein, 160 Mich. 142 (146), 125 N. W. 14; Boots v. Steinberg,

100 Mich. 134 (139), 58 N. W. 657; Hanley v. Walker, 79 Mich. 607 (619), 45 N. W. 57, 8 L. R. A. 207.

See also note to Pope v. King, 16 L. R. A. (N. S.) 489. Where the contract provided that the work should be performed to the satisfaction of the owner or his superintendent, and a portion of the work was not done according to the specifications, but the change was discussed and the course taken was acquiesced in by the owner, he was deemed to have approved of the work. Boots v. Steinberg, 100 Mich. 134 (137), 58 N. W. 657. But the court in that case said: "To go further, and say that the fact of such construction without interference is conclusive of the question of approval, would be, in effect, to say that whatever the contractor could succeed in doing must be taken as approved, a proposition that

§ 37. Abandonment or Failure to Perform by Contractor.

Where the contractor abandons or refuses to complete the work that act or refusal does not prejudice the rights of subcontractors and others entitled to liens; they are still entitled to liens for work performed and materials furnished up to the aggregate amount called for in the contract less amounts paid and properly distributed or applied to the payment of claims of subcontractors and others.40 In case of