201 P. 733 | Or. | 1921
But it does not follow that a mere mistake in an item of a, claim necessarily renders the whole lien void, when it is evident that no fraud is intended and where it has not misled the defendant owner to his prejudice in making his defense: See Rowland v. Harmon, 24 Or. 529 (34 Pac. 357); Harrisburg Limber Co. v. Washburn, 29 Or. 150, 170 (44 Pac. 390); Allen v. Elwert, 29 Or. 428, 433 (44 Pac. 824); Cooper Mfg. Co. v. Delahunt, 36 Or. 402, 407 (51 Pac. 649, 60 Pac. 1); Mason v. Germaine, 1 Mont. 263; Black v. Appolonio, 1 Mont. 342; Palmer v. McGinness, 127 Iowa, 118 (102 N. W. 802); Fairbairn v. Moody, 116 Mich. 61, (74 N. W. 386, 75 N. W. 469); Hurlburt v. Just, 126 Mich. 337 (85 N. W. 872); Kendall v. Fader, 99 Ill.
In Mason v. Germaine, supra, the court discussing this subject under a similar statute remarked:
“The fact that the complaint and notice of lien claimed as due plaintiffs a larger amount than that found by the court, will not destroy their lien for the amount actually due, unless there be a fraudulent intent in filing the same, which must be proved and will not be presumed.”
This statement appears to us to be fair and equitable, and we adopt it, with the reservation, however, that there may be cases where the negligence in preparing the notice is so gross and palpable or has so misled the defendant as itself to raise a presumption of intentional fraud, or has occasioned such action by a defendant in the premises as to preclude the plaintiff from any right to relief in equity. "We do not find these conditions in this case, and we are not disposed to fine plaintiff $362 for making a mistake of $43 in the amount claimed in his notice.
He used a similar copy of a like memorandum in testifying as to the claims of Pooler and Powers, and a motion was made to strike out his testimony in regard to their liens, but in view of what we hold and shall hereafter discuss in relation to those claims, it is unnecessary to consider that matter further.
We conclude that the plaintiff is entitled to a decree foreclosing his lien for the amount prayed for, less $48.50, and for the attorney’s fee of $40 allowed him by the Circuit Court.
As to the liens of Pooler and Powers, we regret to say that there is no competent evidence that they have not been partially or wholly paid. Those claimants held the liens from April to August, in which latter month they assigned them to plaintiff. Plaintiff knows that nothing has been paid to himself, but he does not know and cannot prove what took place between Pooler and Powers and McCullough and Atkinson during the interim between April and August, and his testimony on that subject is conjecture and hearsay. Pooler and Powers were in a position to know absolutely whether or not any payments had been made, but neither of them was put upon the stand, nor was their absence accounted for.
*75 “The plaintiffs M. L. Hall, Frank Cardwell, and John F. Troy, did not appear as witnesses at the trial; the testimony showing that neither of them was then in Jackson County. The plaintiff Alfred Lewis, who was foreman of the mines, testified in their behalf as to the correctness of the liens filed by each, in respect to the several sums due; but he did not say, and probably could not testify, that no payments had been made to them, or either of them, by Flanders or Beers, after the liens were filed. As the lessors’ property is to be subjected in this suit to the payment of debts contracted by the lessees, the burden was imposed on the lien claimants of showing that no payments had been made on account of their liens since they were filed; and, not having done so, the claims of Hall, Cardwell and Troy must be disallowed.”
The decree of the Circuit Court will be so modified as to reduce the amount of plaintiff’s recovery on his own lien to $362.20, which sum he shall recover together with $40 attorney’s fee and his costs in the Circuit Court, including his claim for filing and re