Nurmi v. Beardsley , 275 Mich. 328 ( 1936 )

I think the holding too technical as between owners by the entireties and their contractor.

The statute, 3 Comp. Laws 1929, § 13104, provides for service of the notice on the owner, part owner or lessee, or his agent. The common-law rule prevails in this jurisdiction and, under estates by the entireties, the husband has the right of control, use, rents, issues and profits of the premises.Morrill v. Morrill, 138 Mich. 112 (110 Am. St. Rep. 306, 4 Ann. Cas. 1100); Way v. Root, 174 Mich. 418; Woch v. Kozakiewicz,255 Mich. 32. The service on the husband, joint contractor with his wife, should be held notice in compliance with the statute.

In Hartwick Lumber Co. v. Chonoski, 216 Mich. 424, the owners held title by the entireties, and notice by registered letter was not received by the wife, but the lien was held valid.

In Hopper-McAllister Corp. v. Pelham, 241 Mich. 235, the owners held title by the entireties and it was held that the husband could waive service of the notice on his wife.

The good sense of these opinions appeals to me, for the purpose of the statute is only to protect the owner against paying some one else for the same labor or material.

The decree should be reversed, and the case remanded for determination of the amount, if any, due plaintiff. Plaintiff should recover costs.

BUTZEL and TOY, JJ., concurred with WIEST, J.