subcontractor, materialman or laborer as against an erroneous statement to the owner by the contractor under section 4, though such notice is for the protection of the subcontractor, laborer or materialman and is not a prerequisite to a valid lien of such subcontractor, etc., even if the owner pays the contractor without first requiring the sworn statement required by section 4;5 nor will it be needed in the practical operations under the law if the contractor makes truthful statements to the owner.

(c) Prerequisite to any lien, of course, is the making and filing of the verified statement or claim of lien; to this must be added service of this statement upon the owner or his agent, either personally or by posting same upon the premises, except as to parties dealing directly with the owner. These will be treated in detail elsewhere." The filing of proof of service has been held not requisite to the attaching of the lien but merely necessary before any subsequent proceedings are taken to enforce such lien."

(d) Before a contractor may claim lien he must, in addition to the above, furnish to the owner, part owner or lessee or his agent, the statement under oath containing the

4. §4 of Act 179 of 1891; C. L. 1915 (§14799), How. 2nd Ed. (813769), C. L. 1897 (§10713). Smalley v. Ashland Brown-Stone Co., 114 Mich. 104 (107-108), 72 N. W. 29; J. W. McCausey & Co. v. Gittleman, 201 Mich. 8, 166 N. W. 896 (897), wherein the contingency subsequently arose.

5. Green Bay Cut Stone Co. v. Fabry, 169 Mich. 544 (549), 135 N. W. 512; Smalley v. Ashland Brown-Stone Co., 114 Mich. 104 (107-108), 72 N. W. 29; Blitz v. Fields, 115 Mich. 675 (676-677), 74 N. W. 186; 27 Cyc. 106-109, 111-124. In Smalley v. Ashland Brown-Stone Co. (114 Mich. 108) the court said: "It is true that, for his own protection, the subcontractor, if he wishes to prevent a payment which will be valid as against him, must see to it that the sworn statement of the original contractor (if the owner ex

acts one) embodies his claim, or must himself serve the notice provided by section 1. This view is strengthened by the provision of section 1 that the notice by the subcontractor shall be sufficient, although not served within the ten days provided, if it be served on the owner before the sworn statement by the original contractor is made. The reason for this is that, if the notice by the subcontractor is not served, the owner may act upon the sworn statement by the original contractor. We think it should, be held, therefore, that this provision is for the protection of the subcontractor or laborer, and is not a condition to the lien attaching." 6. See §§51-63.

7. Smalley V. Northwestern Terra-Cotta Co., 113 Mich. 141 (148), 71 N. W. 466.

names of, and the amounts due to, every subcontractor, materialman or laborer; this statement must be furnished, if the owner, part owner or lessee or his agent can be found within the county, before the contractor may claim a valid lien or enforce his demands, though the failure by the contractor to furnish such statement has been held under special circumstances not necessarily fatal in an action on the contract. The statute expressly declares, and it has been repeatedly held that, until this statement is furnished, the contractor shall have no right of action or lien against the owner, part owner or lessee on account of such contract.10 The requirement of this statement is not dispensed

8. §4 of Act 179 of 1891, C. L. 1915 (14799), How. 2nd Ed. §13769, C. L. 1897 (10713); Wildey v. Gillett, 171 Mich. 157, 136 N. W. 1116; Wilkinson on Mechanics' Liens, pp. 37-40. See Form No 2, Part Three.

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9. Barnard V. McLeod, Mich. 73 (75-76), 72 N. W. 24. In this case the court said: "We held in the case of Martin v. Warren, 109 Mich. 584, that, before a lien could be enforced, this statement must be furnished, and that the owner could not be compelled to submit to the alternative of determining whether a lien existed or might yet be filed, or being subjected to costs. We see no reason for holding that this rule does not apply to an action upon the contract, when the contractor has not effected a lien, as well as to cases brought to enforce a lien. It is within the letter of the act, and to hold otherwise would place a penalty on solvency and subject a man who promptly pays his debts to dangers that one who is impecunious is practically exempt from. In the case before us it was claimed that a lien was effected, and although the evidence offered by the defendant was excluded, it may be that the defendant would not have been safe in making payment. At all events,

the act forbids recovery until the statement is furnished. The defendant cannot be compelled to take the chances of litigating the question whether or not he may safely pay, but may insist upon absolute protection through the contractor's sworn statement. We do not intend to be understood as saying that the service of such sworn statement is necessarily jurisdictional, and that neglect to serve is fatal in all cases, or that it cannot be waived. Possibly it should not be allowed to stand in the way of recovery where the absence of other liens and the opportunity to effect them are conceded or obvious. This provision is a shield, and, while it should be given full effect for that purpose, its mission may be held to end with the possibility of such use, should such case arise. And it is not a sufficient answer to say that this is an action for a breach of the contract, for it is not, in any such sense as would justify the disregard of the statute."

10. §4 of Act 179 of 1891; C. L. 1915 (14799), How. 2nd Ed. §13769, C. L. 1897 (10713); Sterner v. Haas, 108 Mich, 488 (489), 66 N. W. 348; Wiltsie v. Harvey, 114 Mich. 131 (132-133), 72 N. W. 134; Barnard v. McLeod, 114 Mich. 73 (75-76), 72 N. W.

with by the fact that sixty days from the full completion of the work had expired when the bill was filed;11 nor because all the materials and labor had been paid for and such statement had never been requested by the owner;12 nor because all the laborers have been paid before the hearing, and no one has filed or could file liens, where the complainant filed his claim of lien forty days before the expiration of the time for other claimants to file liens and began his suit ten days before such expiration;13 nor because the owner and the contractor are the only parties interested.1

Failure to serve the statement was held not fatal to the maintenance of an action upon the contract where it appeared that the objection was not raised on the trial in Justice Court, that the statement was never demanded, and that all bills had in fact been paid;15 or where the time to obtain liens had long since passed, and it appeared that no such statement was ever requested and that no laborers or materialmen were in a position to assert liens or to subject the owner to litigation.16 Delay in serving the statement until after the claim of lien is filed, but serving it before the time in which to claim a lien expired, has been held not fatal." The furnishing of the statement is not a condition precedent to the claiming or enforcement of liens by others than the principal contractor; hence the statement is not required as a prerequisite to the suit of manufacturers selling materials made in their own shops for a particular structure, as they are regarded as materialmen.18 Though the bill to enforce a lien has been taken as confessed against the owner, an adverse lienor may assert the invalidity of a contractor's lien because of the failure of the contractor to serve the statutory statement upon the owner.1

19

(e) Each person claiming a lien shall, from time to time whenever required by the owner, part owner or lessee,

15. Bollin v. Hooper, 127 Mich. 287 (289-290), 86 N. W. 795.

16. Walker v. Syms, 118 Mich. 183 (188), 76 N. W. 320; Morton v. Eaton, 141 Mich. 444 (449), 104 N. W. 726. But see cases cited under note 10 of this section and especially Martin v. Warren, 109 Mich. 584, 67 N. W. 897, wherein it was held that a contractor was not relieved from serving his sworn statement although the time for filing liens had passed. Failure of a contractor to furnish the sworn statement is excused in an action in. assumpsit where the specifications provided that he need furnish such statement only in case he did not give bond, and he furnished

such bond and it was accepted by defendants, the owners. Maurer v. School District, 186 Mich. 223 (231), 152 N. W. 999.

17. Holliday v. Mathewson, 146 Mich. 336 (338), 109 N. W. 669.

18. Kerr-Murray Mfg. Co. v. Power Co., 124 Mich. 111, 82 N. W. 801.

19. Wiltsie v. Harvey, 114 Mich. 131 (134), 72 N. W. 134. Likewise if an owner can waive a contractor's omission to serve the sworn statement, his attempt to do so will not be effectual as against a mortgagee of the premises. Dittmer v. Bath, 117 Mich. 571 (573), 76 N. W. 89; Adams v. Central City Granite, etc. Co., 154 Mich. 448 (458), 117 N. W. 932.

and within five days from demand, furnish a written statement of the amount of work and materials furnished to date and unpaid, as nearly as can be ascertained, under penalty of a forfeiture of his lien.20 Though the owner is not prejudiced, the failure by the lienor to furnish the owner such statement of his claim within five days after it is demanded, if before filing the bill to enforce the lien, forfeits the lien,21 but where the bill of complaint contained an itemized account of complainant's claim, the lien was held not to be lost by non-compliance with a demand made after the bill was filed and the subpoena (summons) served.22

(f) Within one year from the date of filing claim of lien, proceedings by bill in chancery must be instituted to enforce the claim and to foreclose the lien, or the lien will be lost.28

(g) Upon instituting proceedings to enforce the lien its validity and protection ceases, at least as to third persons without actual notice of the lien, or after one year without notice of the proceedings to enforce, unless lis pendens is filed for record with the register of deeds.24

§ 40. Procedure to Avoid and Prevent Liens.

The act is designed to secure an equitable distribution. of the proceeds of contracts subiect to its provisions; the rights of owner, contractor, subcontractor, materialman and laborer are all preserved by its provisions; the owner is entitled to his construction or improvement contracted for of the character and in the manner called for in the contract and at the contract price, but is required to be watchful in

20. §8 of Act 179 of 1891; C. L. 1915 (14803), How. 2nd Ed. §13773, C. L. 1897 (10717).

21. Frolich v. Beecher, 139 Mich. 278, 102 N. W. 736.

22. Rohde V. Weinberg, Mich. 318, 120 N. W. 789.

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23. 89 of Act 179 of 1891 as

amended by Act 199 of 1893 and Act 143 of 1897; C. L. 1915 (14804), How. 2nd Ed. §13774, C. L. 1897 (10718).

24. §10 of Act 179 of 1891; C. L. 1915 (14805), How. 2nd Ed. $13775, C. L. 1897 (10719). See Form No. 24, Part Three.