150 P. 747 | Or. | 1915
delivered the opinion of the court.
“That no lien was created in favor of the plaintiff under the lien notice filed by him, the claimant having mingled therein lienable and nonlienable items in a lumping charge, there being no means of ascertaining from the notice itself the amount of nonlienable items, or of segregating the same from the lienable items.”
When the lien notice contains merely a lumping charge of the amount demanded, consisting of both lienable and nonlienable items, and there is no means of ascertaining the latter from the lien notice itself, it has often been held that no lien is acquired, and the court cannot, from oral testimony, separate the items for which a lien is given from those for which no lien can be acquired: Harrisburg Lbr. Co. v. Washburn, 29
“I imagine the bill is for two machines, $2,087.37; that is double the cost of one machine.”
It appears that he had seen the first one, but not the second. Upon being recalled he testified that the dryer constructed at Willamina cost $1,100 and resembled those at Hillsboro. In addition to this, defendant introduced in evidence a statement of the cost of the dryer at the former place, which showed the same to be $1,010.98. It is therefore clearly apparent that there is practically no dispute but that the plant was of the reasonable value of the amount claimed. It is seldom that there is so little difference in the estimates of the parties. In keeping his accounts, Mr. Barr made the memorandum of board and expenses which were paid for as a part of the cost of the labor performed and materials furnished in constructing 'the dryer, and simply charged as board and expenses. It enhanced the cost of the structure, but was purely the compensation for the labor and materials.
Suppose a man had worked for Mr. Barr upon the dryer in question 50 days for his board, and Barr had paid $1 per day for his keep, could it successfully be maintained that plaintiff would not be entitled to a lien for the $50 paid in that manner for the labor performed upon the structure if it was reasonably worth that sum? We think not. Board and expenses, when considered as used in the construction of a building, are nonlienable, but when they are a part of the reasonable compensation paid for the labor and materials, it is otherwise. In City of Salem v. Lane & Bodley Company, 189 Ill. 593 (60 N. E. 37, 82 Am. St. Rep. 481), it was held that if the contract for an engine for
The question at issue in the case under consideration is the reasonable compensation for the labor performed and materials furnished in the erection of the dryer. The form of bookkeeping or memorandum made by the plaintiff is not important. It is the truth of the allegations that should govern, and not the form of bookkeeping ; hence we conclude that there were no nonlienable items contained in the amount claimed in the lien notice.
The second position of the defendant is that the lien statement filed was not a true one within the meaning of Section 7420, L. O. L. This is embraced in the first contention mentioned, of which we have already dis-. posed. The defendant’s evidence shows that the amount of the statement filed was the reasonable value.
It was stipulated that the court fix a reasonable amount as attorney’s fees for the foreclosure of the lien. Two hundred dollars is allowed as such. The decree of the lower court is therefore reversed, and one will be entered foreclosing the lien for $2,087.37, for $200 attorney’s fees, and for costs and disbursements as prayed for in the complaint.
Reversed and Decree Rendered.