saw your letters and never opened them until yesterday with Philip. I see you are very much displeased, but you are not more disappointed than I that it was impossible for me to meet my notes. We had much to contend with this summer-but laying all explanations and excuses aside, Mr. Perkins, I do not want you to feel anxious about what is due you. It will all be paid. Philip and I can and will pay all our obligations and when we go out this spring all we make I will send you and will send to you right along as we make it. I am not behind on payment, but three and two months.

"You know business exigencies are such one cannot always help that. The engine is intact, the boat is fine, and we are well and I know we are honorableI shall meet all my obligations and as I know you as all business men need money I want you to feel sure as we are sure you will get all your money and just as soon as we can possibly get it. I have looked over the accounts with Philip, but I cannot come over this morning. Philip will be back in a week or so, just as soon as he can safely leave the boat in the care of some one and then I will come over and look over the accounts-I was terribly imposed upon by the men who moved the boat to the water and also the man who made the tanks and that with the misfortune of the last trip is what rendered it impossible for me to hand you some money.

"I have had my due share of disappointments, and perplexities, many of them, and I am sorry to be the cause of any to you. Had I not felt so certain I could meet my obligations with you, I never should have bought the engine. I hoped much from it and was full of hope in every way.

"Much as I hate the water and hard as it will be for me, I shall go out with him on the boat this spring to make the money to pay for the engine-I can do no more than that, only again to assure you the engine will be entirely paid for just as soon as it is possible.

"Very truly,

"MRS. E. EAGLESFIELD."

She also wrote Mr. Honne, complainant's foreman, the following letter on February 14, 1910, viz.:

"La Rue Lumber Company, Incorporated. "INDIANAPOLIS, IND., February 14, 1910. "Grand Rapids Gas Engine & Yacht Co., "Grand Rapids, Mich.

"Mr. Honne, Foreman.

"Dear Sir:

"Reached Indianapolis Saturday night and can now pay my running account in full-$42.65, providing it will be accepted as payment in full of my account. I inclose you the list which you made at the time we looked over the accounts, January 28th, when I paid $100.00. The last $10.00 is for the lever on the engine. It seemed to me rather a good price for this extra lever, since I was entitled anyway to a lever. The settlement does not include the claim on repair of the governor, but I do not feel that the damage to the governor was at all my fault, and also since I was at the expense of taking it off, and taking it to you, and putting it on, I thought in consideration of my paying this now, Mr. Perkins would look upon the account as I do.

"I address this to you because you settled up the account with me, and I inclose you the figures which you made, so as to verify my balance. I will then owe only what is due on the engine and as my notes bear interest from the time of delivery of the engine, will you please inquire and tell me at what date you claim that interest began to run?

"Please give me as early an answer as possible. "Very truly,

"MRS. E. EAGLESFIELD.”

These letters are very significant when considered in connection with her claim that the engine did not come up to the warranty. She never made any complaint in writing.

After complainant rested, the said defendant also rested, without offering any evidence.

Said defendant then claimed that complainant was not entitled to the relief sought for the following rea

sons:

(1) That complainant had lost his right of action,

because in his complaint he had claimed a greater amount than was actually due when the action was commenced and the boat attached. (2) That complainant, both in his contract with defendant, and in the notes given by defendant, retained title to the engine and materials in question, and for that reason waived his right to the lien as provided by the statute in relation to water craft. (3) That in this case the credit had been given to the individual, and not the vessel, and therefore no lien attached.

The trial court, after argument, decided as follows:

"It is contended by the defendant in this case that this engine and accessories were not sold to the defendant with any understanding in relation to where it was to be used, and that it was not furnished in such a sense as would make the statute in relation to water craft apply. Be that as it may, I can imagine no case where the acts and conduct of the plaintiff would make it more apparent, nor could I imagine the case where the facts or circumstances would amount to a waiver, if this is not. And therefore the court holds that the plaintiff in this case is not entitled to a lien."

Whereupon the jury were discharged, and a judgment was entered for the defendant. The complainant has appealed.

After the appeal was perfected, the testimony of the complainant and of Peter Honne was taken on behalf of complainant, and that of Elizabeth Eaglesfield was taken in her own behalf, under the provisions of section 10826, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13662). Such testimony has been certified to this court, and has been considered by us, in pursuance of the provisions of section 10825, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13661), without considering the objections taken to the last testimony of Mrs. Eaglesfield.

Before passing to the consideration of the questions urged by defendant, as reasons why the complainant

is not entitled to prevail, we notice the position of complainant relating to the surrender and cancellation of the notes offered in evidence. Under the statute, the hearing in this court is de novo upon the transcript and depositions, and further testimony taken as provided by the section above referred to.

Counsel upon both sides have discussed at length what the claim of complainant and his counsel was in the court below. We think that the position of complainant in the court below was not inconsistent with his position here, and we are disposed to take him at his word in what he states in his reply brief, viz.:

"However, in order that there may be no possible ground for mistake, I shall again state appellant's position. Appellant believes that he was, by the statute, given a lien on the boat Golden Girl, for the engine, accessories, and labor furnished in the building, fitting, and equipping of it, that he has never done anything to waive that lien, that in this proceeding he is seeking to enforce that lien, and that, in the acceptance of the bond furnished by appellee for the restitution of the boat, the boat was forthwith discharged from all liens, and that he must henceforth look to and rely upon the bond. Appellant did not believe, and did not contend, and does not now contend, that he still retains title to the engine and accessories. He does not claim title through or by virtue of the contract or notes. He has delivered up, and does now here deliver up, the notes and contract for cancellation."

It will be so considered, without further discussion. 1. Upon the first point urged by counsel for defendant, he relies upon the case of Gibbs v. Hanchette, 90 Mich. 657 (51 N. W. 691). It was there held that mechanics who, with knowledge of the status of the account, or with information thereof at their disposal, seek to secure a lien under Act No. 216, Laws of 1885, cannot be excused for a failure to file "a just and true statement of account of the demand due

185 Mich.-14.

them, over and above all legal set-off," as required by section 2 of the act.

The statute we are here considering (section 10790, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 13626), requires the complaint to state "the amount due over and above all payments and discounts, as near as may be, which shall be verified by affidavit in the same manner as bills in chancery." Without holding that there is any essential difference in the two statutes, it should be noted that in the Gibbs Case this court said:

"The authorities very generally hold that where there is an honest mistake of fact, made in the honest belief of its correctness, courts will not for that reason hold that the lien is lost. But where claimants place upon record a statement which they know is not correct, the authorities are very uniform that the lien is lost.'

We are of the opinion that the facts in the instant case clearly distinguish it from the Gibbs Case, and that the instant case is ruled by the following cases: McMonegal v. Wilson, 103 Mich. 264 (61 N. W. 495); Lamont v. Le Fevre, 96 Mich. 175 (55 N. W. 687); Scheibner v. Cohnen, 108 Mich. 165 (65 N. W. 760); Hulburt v. Just, 126 Mich. 337 (85 N. W. 872); McAllister v. Des Rochers, 132 Mich. 381 (93 N. W. 887).

We think there was no evidence of bad faith, and the circumstance of delay in filing complaint explains the error as an honest one.

2. Was complainant's right to a lien waived by the fact that, in the contract and notes, title to the engine and materials was retained? The record discloses that the contract and notes used were the printed forms generally used by complainant in his business. There is no evidence that any claim was ever made by virtue of the provisions, and no proceeding of any kind was ever instituted to recover any part of the property other than the instant suit, under the water