ated on the land hereinafter described, in pursuance of a

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§ 53. Prerequisites to Claim of Lien by Contractor.

As described in detail and commented upon elsewhere,10 before a contractor can become entitled to or claim a valid lien, he must serve the owner with a sworn statement setting forth the number and names of subcontractors, materialmen and laborers, and the amount due to each, in order that the owner may reserve the amounts due to such persons or see

tion of the house or other structure which has been built, repaired etc.

owner

e. In this space insert "the or "lessee "contractor," "subcontractor," or other person, as the case may be, etc.

f. In this space insert "performance of such labor," or "the furnishing of such materials," or both said clauses, as the case may be.

g. In this space insert the following: "labor was performed," or "materials were furnished," or both said clauses as the case may be.

h. If the statement is made by an agent or attorney, or by one

that amounts paid are properly distributed among them for his and their protection if he so desires. Such sworn statement is not essential to the attaching of liens in favor of others than the principal contractor.

§ 54. Time Within Which Claim of Lien to be Filed.

The statute requires the statement or claim of lien to be filed within sixty days from the date on which the last of the material shall have been furnished or the last of the labor shall have been performed by the person claiming the lien." The right of lien arises from delivery to the owner under the contract rather than from delivery to the contractor, and for that reason the sixty day period for filing liens ordinarily dates from the delivery at the building, and not from the delivery to the contractor, or at any other place. 12 Small amounts of material furnished or minor

11. §5 of Act 179 of 1891; C. L. 1915 (14800), How. 2nd Ed. §13770, C. L. 1897 (10714). Hannah & Lay Co. v. Hartzell, 125 Mich. 177 (180), 84 N. W. 52; 27 Cyc. 140-150; Wilkinson on Mechanics' Liens, pp. 49-53. Upon the time of filing of the claim of lien. Rockel on Mechanics' Lien, §94; Boisot on Mechanics' Liens, 88466-495; Kneeland on Mechanics' Liens, 2nd Ed. §§170-181a. If the claim is prematurely filed there is no lien. Jones on Liens, 3rd Ed. §1430; Phillips on Mechanics' Liens, 3rd Ed. §323a. 27 Cyc. 150-151; See $50, note 2. Time of furnishing last material as fixing date for period of limitation on filing claim of lien. Jones on Liens, 3rd Ed. $1427-1451; Rockel on Mechanics' Liens, 8895-99; Phillips on Mechanics' Liens, 3rd Ed. §§324-330. Complainant furnished material upon estimate made by him and afterwards delivered further material from time to time as or dered. Held: that all material

was furnished on single or continuous contract and 60 days limited by statute began to run upon last delivery. Union Trust Co. v. Casserly, 127 Mich. 183 (185), 86 N. W. 545; Smalley v. Gearing, 121 Mich. 190 (203), 79 N. W. 1114, 80 N. W. 797. The time of furnishing articles not suited to, ordered for or used on, the building against which lien is claimed, cannot extend the time for filing lien for materials furnished. Battle Creek Lumber Co. v. Poland, 150 Mich. 690, 114 N. W. 671. The date of furnishing materials to the contractor in good faith for a building, but not in fact used in the building by him, nor delivered on the land, but sold to a third person, cannot be regarded as the date of the last furnishing from which the time to file a mechanics' lien begins_to run. North v. Globe Fence Co., 144 Mich. 557 (558), 108 N. W. 285.

12. North v. Globe Fence Co., 144 Mich. 557 (558-559), 108 N.

services rendered by the claimant, after the real completion of the contract and upon his own initiative, will not aid in extending the time within which to file liens.18

§ 55. Surplusage and Errors in General.

Matters unnecessarily included in the claimant's statement of his lien and not misleading to, or working any fraud upon, the persons against whom the lien is claimed, are treated as surplusage and do not operate to invalidate the lien.1 Substantial compliance with the terms of the statute is both indispensable and sufficient. The claim need

3

not be in the exact words of the statute, nor will it be defeated because awkwardly drawn or because of purely technical defects.15

§ 56. Statement of Time of Furnishing Materials and to Whom Furnished, in Claim of Lien.

The statute requires the statement or claim of lien to set forth the time when and the person for whom the materials were furnished or the labor was performed.16 This requires the naming of the owner, contractor or subcontractor, as is appropriate to the facts, and if the furnishing is to a subcontractor it might be well to name the contractor also. It has been held that the mistaking of the name of the con

264 (266), 61 N. W. 495. In this case it was held that, where the claimant declared in his affidavit or statement of lien that he "furnished certain labor and material in and for building a house * * * in pursuance of a certain contract with the owner **"> such affidavit or statement left no room to infer that claimant did not assert himself to be the principal contractor. See also: John Paul Lumber Co. v. Hormel, 61 Minn. 303, 63 N. W. 718.

15. 27 Cyc. 153-154. A statement of lien conforming substantially to the statutory form, except not stating that the material was furnished in pursuance of a contract with the principal contractor or some other person, but stating instead that the material was furnished for improving the premises and that the owner knew that such material was to be furnished to the contractor by the claimant, is sufficient. Kleinert v. Knoop, 147 Mich. 387 (389390), 110 N. W. 941. Errors or defects in claim or statement of lien and amendments thereof. Rockel on Mechanics' Liens, §§121123; Jones on Liens, 3rd Ed. §§1422-1426, 1455-1456, 1408-1417;

Boisot on Mechanics' Liens, §§359, 423-430, 432, 440, 462-465, 504; Phillips on Mechanics' Liens, 3rd Ed. $8327b, 389a; Houck on Law of Liens, §210; Kneeland on Mechanics' Liens, 2nd Ed. §§161-165. The right to file amended claim to perfect an imperfect claim, exists where done within statutory period. Notes, 15 Am. & Eng. Ann. Cas. 1086-7. Though there is no such right in suit to enforce lien, after expiration of statutory period. 35 Am. & Eng. Ann. Cas. 60-65. See Kirkwood v. Hoxie, 95 Mich. 64, 54 N. W. 720, where second claim under one lien law permitted after first filing of claim under another law declared to be invalid. That claimant filed two statements of lien for the same debt, the second being to supply supposed deficiencies in the first, does not make an election between the statements necessary. Fox v. Benham Mfg. Co., Mich.

164 N. W. 385.

16. §5 of Act 179 of 1891; C. L. 1915 (14800), How. 2nd Ed. §13770, C. L. 1897 (10714). As to naming person furnished, see 27 Cyc. 178-181. As to statement of the time of furnishing material, labor or services in claim

tractor in the claim of lien was a fatal defect and is not subject to amendment." Where the notice or claim of lien was filed so near to the expiration of the sixty day period that the date of furnishing the last material became important, it was held insufficient to state that the last maerial was furnished "on or about" a certain date.18 Good practice requires an itemized statement of the various dates of furnishing or performing, though fixing the time between two given dates is generally sufficient.1o

$57. Filing of Claim of Lien.

The claim of lien must be filed in the office of the Register of Deeds of the county or counties where the real estate, house, building, structure, or improvement to be charged with the lien, is situated, within the sixty day period limited for filing.20 In this respect the statute should be strictly followed as the failure to file within the prescribed period would undoubtedly be fatal to the claim.21

of lien, see: Jones on Liens, 3rd Ed. $1407; Rockel on Mechanics' Liens, §§113-114; Boisot on Mechanics' Liens, §§418-422; Wilkinson on Mechanics' Liens, p. 56; 27 Cyc. 181-184. Error in the statement of lien as to the time when the first and the last materials were furnished will not invalidate the lien where the claim was in fact filed within sixty days from the furnishing of the last material. Union Trust Co. v. Casserly, 127 Mich. 183 (185), 86 N. W. 545. Where the statement of lien merely gave the initial of the first name of the owner, this was held sufficient, where the owner's name appeared in that form in all the papers and there was no question as to his identity. Hicks v. Finbarg, 189 Mich. 332 (338), 155 N. W. 359.

17. Lacy v. Piatt Power & Heat Co., 157 Mich. 544 (546), 122 N. W. 112. Statement in claim of

lien of person to whom materials, labor or service furnished-contractor or employer. Rockel on Mechanics' Liens, §112; Boisot on Mechanics' Liens, §§386-389.

V.

18. Godfrey Lumber Co. Kline, 167 Mich. 629 (631-635), 133 N. W. 528. See however John F. Noud Co. v. Stedman, 193 Mich. 459, 160 N. W. 547, in which it was held that where the statement of the furnishing of the last of the material was definite, the statement as to furnishing the first of the material as "on or about" a certain date, Iwould not invalidate the lien.

19. 27 Cyc. 181-183; Wilkinson on Mechanics' Liens, p. 56.

20. §5 of Act 179 of 1891; C. L. 1915 (14800), How. 2nd Ed. $13770, C. L. 1897 (10714); 27 Cyc. 124.

21. 27 Cyc. 136-138. The lien has been held not to be invalidated by the elapsing of a day be