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12/10/75 MICHIGAN CAROUSEL v. CECIL

December 10, 1975

MICHIGAN CAROUSEL, INC.
v.
CECIL



Appeal from Charlevoix, Edward H. Fenlon, J.

R. B. Burns, P. J., and D. E. Holbrook and D. F. Walsh, JJ.

SYLLABUS BY THE COURT

1. Mechanics' Liens -- Statutes -- Interpretation of Statute -- Waiver.

The provisions of the mechanics' lien statute must be strictly construed until such time as the lien attaches; no waiver of the requirements of this part of the statute is allowed (MCLA 570.2; MSA 26.282).

2. Mechanics' Liens -- Statutes -- Written Contracts -- Oral Agreements -- Modifications of Writings.

A statute requires that improvements giving rise to a mechanics' lien on property held by tenants by the entireties be made pursuant to a written contract signed by both the husband and wife; liens for improvements made pursuant to an oral agreement are not enforceable under the statute even where it is claimed that the oral agreement was a modification of a previous written contract (MCLA 570.2; MSA 26.282).

3. Constitutional Law -- Statutes -- Mechanics' Liens -- Equal Protection -- Preserving Question.

A contention that the mechanics' lien statute denies equal protection of the laws which was not raised at the trial level will not be heard on appeal (MCLA 570.2; MSA 26.282).

The opinion of the court was delivered by: Walsh

Complaint by Michigan Carousel, Inc., against Robert L. Cecil and Jean H. Cecil, his wife, jointly and severally, State Bank and Trust Company of Petoskey, and Boyne Falls Log Homes for foreclosure of a mechanics' lien. Judgment for defendants. Plaintiff appeals.

This is a civil action for foreclosure of a mechanics' lien. Summary judgment was granted in favor of defendants and plaintiff appeals.

Plaintiff and defendants Robert and Jean Cecil entered into a written contract whereby plaintiff agreed to construct the shell of a dwelling house on land owned by defendants as tenants by the entireties. It appears that all parties faithfully executed the terms of this written contract.

Subsequently, plaintiff and defendants orally agreed that plaintiff would also finish off the interior of the structure. As work progressed defendants made payments to plaintiff but at the time construction was completed, defendants allegedly owed plaintiff over $12,000.

The plaintiff brought this action for foreclosure of a mechanics' lien. The trial Judge granted summary judgment on the grounds that the improvements were not made pursuant to a written contract as required ...


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