Curtis v. Sestanovich, 26 Or. 107

Curtis v. Sestanovich

26 Or. 107 | Or. | 1894

Opinion by

Mr. Justice Moore.

1. The statute (section 3673, Hill’s Code,) requires the claimant, in his notice of lien, to state the name of the owner of the building sought to be charged with the lien. The authorities are unanimous in support of the doctrine that what the statute requires in order to perfect the lien is a condition precedent, and must be complied with before the lien can attach to any property. The lien begins with the commencement of the construction of the building, grows with its growth, and ripens with its completion; but, however equitable the claim may be, it does not attach to the building unless the claimant, within the time prescribed by law, prepares and files a notice thereof containing all the statutory requirements. When the lien once attaches to the building, it, by relation, also attaches to whatever interest the owner of the building has in the soil that supports it, if it appears from the notice that the owner of the building has some interest therein. “It is, ” says Strahan, C. J., in Kezartee v. Marks, 15 Or. 535, 16 Pac. 407, “the owner of ‘such building or other improvements’ whose name must be specified in the notice, and not the owner of the land where the same is erected.” In Gordon v. Deal, 23 Or. 154, 31 Pac. 287, Bean, J., in discussing this question, says: “It is not sufficient that the *116name of the owner appears in the lien incidentally, or as part of the description of the property, but that he is the owner of the building sought to be charged must appear on the face of the lien as an independent matter, either directly or by necessary inference.” The statute of California (section 1157, Code of Civil Procedure,) requires the lien claimant to state in his notice the name of the owner or reputed owner, if known. In Russ Lumper Company v. Garrettson, 87 Cal. 589, 25 Pac. 747, the lien claimant had stated in his notice that Garrettson was the owner of a lot, giving its description, and that he entered into a written contract with Wanberg & Nelson, by which they agreed to erect and finish for him a building on said lot. It was contended that the claim of lien was defective in that it did not state the name of the owner of the building. The court in that case, in answer to the objection, says: “The above seems to be a sufficient statement that Garrettson was, the owner of the building, which was erected for him on his land, and that the materials were furnished to Wanberg & Nelson, his contractors. To say that the name of the owner of the building, and the names of the persons to whom the materials were furnished, are matters of mere inference, since it does not necessarily follow that the owner of the land is the owner of the building, and the materials might have been furnished to a subcontractor, or other persons, seems to us to be not even a plausible argument.” The notice in the case at bar distinctly states that the building was erected for John Hughes upon real property owned by him. If it had stated that it was erected for some other person on Hughes’ land, there then might be some question as to the ownership of the building. A house is presumed to be attached to the land upon which it is erected (Northrup v. Trash, 39 Wis. 515); and had Hughes conveyed said real property, there can be no doubt from the statement con*117tained in the notice that the brick building erected thereon would have passed to the grantee under the deed. We think that while it is not stated in positive and direct terms that Hughes was the owner of the building, it is necessarily implied from the notice of lien that he was such owner. The statement that the claimant furnished materials to be used, and which were used, in erecting a building for John Hughes upon real property owned by him, is equivalent to saying that John Hughes owned the building.

2. The statute (section 3678, Hill’s Code,) also requires the lien claimant to state in his notice the name of the person to whom he furnished the materials. This is one of the essential requisites of the notice, and must be complied with before the lien can attach: Rankin v. Malarkey, 23 Or. 593, 32 Pac. 620, 34 Pac. 816; Dillon v. Hart, 25 Or. 49, 34 Pac. 817. It is averred in the notice that the claimant furnished materials to be used in the construction of a brick building, etc., and, in a subsequent clause, that the materials so furnished to said Sestanovich and others, and used in said building, consisted of pressed brick and terra cotta. The notice might have stated the fact in more direct terms, but it is quite evident from an inspection of the instrument that the materials were delivered to Sestanovieh and others. No other possible conclusion is deducible from the statement, and hence it complies with the statutory requirement.

3. The contractual relation existing between the owner of the building and the person having charge of the construction thereof should be stated in the notice, when the labor has been done or the materials have been furnished at the instance of any other person than the owner: 2 Jones on Liens, § 1392; Rankin v. Malarkey, 23 Or. 593, 32 Pac. 620, 34 Pac. 816; Warren v. Quade, 3 Wash. 750, 29 Pac. 827; Heald v. Hodder, 5 Wash. 677, 32 Pac. 728. It is by *118virtue of this relation that the agent has authority to bind the property of his principal for labor done and material furnished in the construction, alteration, or repair of buildings: Hill’s Code, § 8669. And since the notice should show a prima facie right to the lien, it is essential to its validity that the relation existing between the parties should appear on the face of the instrument, either directly or by necessary inference. The notice in the case at bar states that Sestanovich and others were the original contractors, and had a contract for the construction of a building for John Hughes. It is not averred in the notice that said contract was made with Hughes, but we think it is reasonably inferred therefrom. If the notice had alleged that Sestanovich and others were subcontractors, it would not have followed that the contract had been made with Hughes, but having alleged that they were original contractors for the erection of a building for John Hughes, they must necessarily have made a contract with him, and hence the relation of the parties is necessarily inferred from the instrument.

4. Our attention has been particularly called to the fact that the notice does not contain an itemized statement of the demand, including the dates when said material was furnished. The statute (section 3673) requires the claimant to file with the county clerk a claim containing a true statement of his demand after deducting all just credits and offsets. In Ainslie v. Kohn, 16 Or. 363, 19 Pac. 97, it was held that the words ‘ ‘ a claim containing a true statement of his demand” did not imply that it should be an itemized statement. In Willamette Falls Company v. Smith, 1 Or. 181, it was held that a complaint in a suit to foreclose a mechanics’ lien should show the dates when the materials were furnished. In the case at bar it is alleged in the complaint that by virtue of a contract entered into between the Pacific Builders’ Supply Company and Sestanovich *119and others, on or about June eighth, eighteen hundred and ninety-two, the said corporation furnished pressed brick and terra cotta to be used in the construction of said building, thus bringing the pleading within the rule announced in the preceding case.

5. In Pilz v. Killingsworth, 20 Or. 432, 26 Pac. 305, Bean, J., in discussing the necessary allegations of a complaint to foreclose a mechanics’ lien, says: “It must affirmatively appear from the complaint that the notice filed contained all the essential provisions required by statute; that it was proper in form, verified as required, and filed within the time prescribed,” and from this it is contended that the notice should affirmatively show when the building was completed. In Gault v. Soldani, 34 Mo. 150, one of the cases cited in support of the above quoted doctrine, the complaint alleged that within thirty days after the materials were furnished and the work was done the claimant filed in the recorder’s office his mechanics’ lien. It was there held that it was not only necessary that the complaint should aver the filing of the account in the proper office, but also the time when filed. This being deemed a material issuable fact, the court reversed the decree, and remanded the cause, with leave to amend the complaint so as to show the date of filing the lien. But in Slight v. Patton, 96 Cal. 384, 31 Pac. 248, it was held that the statute did not require that the notice should state the date of the completion of the building, and that if the lien notice was in fact filed within thirty days after such completion, it was sufficient. Inasmuch as our statute is like that of California, we are inclined to the construction there adopted, and hold that the date of the completion of the building need not be stated when it appears that the claim was in fact filed within the required time.

The bill of materials annexed to and made part of the notice was dated June eighth, eighteen hundred and *120ninety-two. The lien was verified June twenty-ninth, but was not filed with the county clerk until the twentieth of the next month. In Ainslie v. Kohn, Thayer, J., in speaking of the time within which the notice should be filed, says: “Whether, then, the claims were filed within thirty days after the work and material were furnished is unimportant, provided it was done within thirty days after the house was completed. ” It is alleged in the complaint that the building was completed June twenty-third, eighteen hundred and ninety-two, and the architect testifies that on said day he gave his certificate that the building was completed, but that it might have been finished the preceding day. The defendant Hughes testifies that in his judgment it was completed on June twenty-third, but it might have been completed a few days earlier. The defendants, in their original answer, alleged that in consequence of the delay caused by the Pacific Builders’ Supply Company in furnishing said material, they were unable to complete the building until June twenty-third, eighteen hundred and ninety-two. Their amended answer, however, does not give the date of the completion of the building. At the trial the original answer was, without objection, offered in evidence. We think it clearly appears from this that the building was not completed until June twenty-third, and the notice having been filed on July twentieth, eighteen hundred, and ninety-two, was filed within thirty days from the completion of said building, and hence filed in proper time. There being no error in the record, it follows that the decree of the court below is affirmed.

Affirmed.