73 P. 12 | Or. | 1903
delivered the opinion.
This is a suit to foreclose a mechanics’ lien. It is alleged in the complaint that between March 30 and November 1, 1901. the plaintiff, at the special instance and request of the defendant, furnished and delivered certain hardware, of the reasonable value of $574.02, to be used in the erection of his building in the City of Portland, Oregon, no part of which sum has been paid except $300. It is further stated that, within the time prescribed by law, plaintiff filed in the proper office a notice of lien to secure the unpaid balance of $274.02; that he paid one dollar for recording
It is admitted that the hardware was used in the defendant’s building, and that the lien notice was filed within the time limited therefor, and the only questions to be considered are whether the material was furnished to the defendant, and, if so, is the sum demanded the reasonable value thereof ? It is contended by defendant’s counsel that the hardware was furnished to one G. L. Vanderhoof, who, as contractor, erected the said building for defendant, and that, the relation of creditor and debtor never having existed between the plaintiff and their client, the court erred in rendering the decree complained of. The transcript shows that on March 30, 1901, the defendant, being the owner of certain real property in Couch’s Addition to said city, entered into a contract with Vanderhoof, by the terms of which the latter agreed, in consideration of the payment of $10,350.40, to furnish the necessary material and labor and to erect a building on said premises, and to surrender the same, free from liens, on or before August 1,1901. The specifications contain the following clause: “Allow $300 for furnishing hardware. The contractor is to furnish and fix the hardware in place.”
The plaintiff, illustrating his method of preserving a record of his business, testifies that he keeps an estimate book in which is noted articles desired by his customers, from which orders therefor are filled or given, and that, Vanderhoof having made out and delivered to him a list of the hardware selected by the defendant, it was not en
It will be remembered that the specifications provided that $300 was to be allowed for hardware, and the testimony shows that this sum. was included in the contract price for the construction of the building. The defendant having purchased the hardware, as we have found, Vanderhoof must have received this money to his use. The plaintiff testifies that, when the hardware was selected, Vanderhoof said in the defendant’s presence that he would pay $300 on account thereof. He further says : “Vanderhoof was to allow $300, and I knew the money was being-paid to the store, and naturally all I had to do was to charge it up to him, as I did in the original bill.” Vanderhoof, in speaking of this matter, testifies as follows: “My understanding was that when the hardware was bought I was to put it in place, and I was to pay $300 on it; that is the way I figured on the contract, that I was to pay $300 on furnishing the hardware. Q,. Did you pay $300 ? A. I paid $300. At least, I told Mr. Finnegan to charge me that on my account.” We think Vanderhoof’s declaration made in the defendant’s presence, without objection, that he would pay $300 on account of the hardware, warrants us in concluding that the defendant authorized an application of the money in the manner pursued, though the credit therefor was not entered upon the books until August 21, 1901.
5. It is contended by defendant’s counsel that the lien notice does not contain a true statement of the account, because it includes an item of “8 rolls sheathing paper, $6,” which it is argued the defendant did not order, nor authorize Vanderhoof to purchase for him. In speaking of this matter, Vanderhoof testifies that, to prevent the floors from being injured by the adamant plastering, with which he had nothing to do, the defendant, referring to the paper as the proper means for this purpose, inquired of him, “You will put it on if I buy it ?” to which he replied, “Yes,” and the defendant said, “Well, get it up here, and I will pay for it,” whereupon he ordered it by telephone from the plaintiff. The defendant corroborates this statement in every particular, for he says : “ During the time the plasterers were up there, the adamant man was making a terrible muss on the floors, and Mr. Martin and Mr. Vanderhoof were there, and I spoke to them and said I wished we could do something to save those floors a little, and they all agreed with me that they were making a terrible muss on the floors, and I said: ‘Well, couldn’t we do something ? Couldn’t we put down some kind of paper or something on the floor to protect it?’ and Mr. Martin says, ‘Yes, you can put down building paper.’ ‘Well,’ I said, ‘It won’t be very expensive, will it ?’ and he said, ‘No, it won’t cost much ;’ and finally Mr. Vanderhoof spoke up and he says, ‘If you will get the paper I will have it put down ;’ and he says, T don’t know what it will cost, but it won’t cost much;’ and he says, T will go down and telephone and see what it will cost;’ so he went away, and came back, and he says, ‘It will cost six bits a roll.’ ‘Well,’ I said, ‘How many rolls will it take ?’ He says, T think it will take about eight.’
Having examined the testimony with great care, we conclude that the decree should be affirmed, and it is so ordered. Affirmed.