127 P. 772 | Or. | 1912
Opinion by
This is a suit to foreclose a logger’s lien. It is alleged that during the month of December, 1910, plaintiff delivered 133,000 feet of saw logs to the sawmill of defendants from their logging camp, under a contract with the defendants; and thereafter, in January, 1911, plaintiff filed a logger’s lien therefor upon the lumber in the yard at the sawmill. The mill was cutting from the logs while they were being delivered so that before the expiration of the time for filing the notice of lien most of the logs had been manufactured into lumber. So far as appears, these were the only logs in the yard except a few that were cut immediately above the mill. Sections 7461, 7462, L. O. L., are parts of the same legislative act, and provide for laborers’ liens as follows, to wit:
“Section 7461. Every person performing labor upon or who shall assist in obtaining or securing saw logs, spars, piles, or other timber, has a lien upon the same for the work or labor done upon or in obtaining or securing the same, whether such work or labor was done at the instance of the owner of the same or his agent. The cook in a logging camp, and any and all others who may assist in or about a logging camp, shall be regarded*295 as a person who assists in obtaining or securing the saw logs, spars, piles, or other timber herein mentioned.
“Section 7462. Every person performing labor upon, or who shall assist in manufacturing saw logs or other timber into lumber, has a lien upon such lumber while the same remains at the yard wherein manufactured, whether such work or labor was done at the instance of the owner of such lumber of his agent.”
We conclude that the lien under Section 7461, as in this case, followed the logs in their changed form and attached to the lumber manufactured therefrom, while their identity can be followed, and that the form of notice of lien was sufficient to continue the lien; it being described as upon the lumber manufactured from the logs upon which plaintiff had a lien.
The Washington statute (Sections 1679, 1680, 1 Hill’s Code) was identical with our present statute (Sections 7461, 7462, L. O. L.), under which the decision in Winsor v. Johnson, 5 Wash. 429 (32 Pac. 215), was rendered; and in 1893, Section 1680 was amended. Laws 1893, c. 10. So far as involved here, the change provided that the term “lumber” should be held to include logs and other timber sawed or split for use, and in Robins v. Paulson, 30 Wash. 460 (70 Pac. 1113), it was held that the lien on the logs was extended to the manufactured article, under Section 1680 (Section 5931, Ballinger’s Code). • And we think it is a reasonable application of Section 7461, L. O. L., to permit the lien to follow the logs into their changed form, such as lumber. By Sec
This brings us to. the question as to the amount due plaintiff. The defendants allege that plaintiff commenced hauling logs in June, 1910, under a contract, and that the hauling which is tEe basis of the lien was done under that contract; that plaintiff, during the whole time, hauled 100,000 feet of logs at $1.75 a thousand feet and 533,126 feet at $2.00 a thousand feet, of the total value of $1,241.25, and that the defendants have paid him thereon $1,256.60, $15.35 more than was due. Plaintiff, by reply, admits the payment of $1,256.60, but alleges that a portion thereof was payment upon other items, and that besides the 100,000 feet, as to which there is no controversy, he hauled 498,154 feet prior to the 5th day of October; that thereafter plaintiff and defendants had a settlement in relation thereto in which there was found due to plaintiff, over and above all payments made thereon, the sum- of $490.10, in which were included some other small items of credit amounting to $92.50; that thereafter, in the month of December, he hauled 133,118 feet, which is the hauling for which the lien was filed; that thereafter, on January 3, 1911, plaintiff had a settlement with the defendant, in which there was found due to plaintiff the sum of $266.23 for hauling logs in December, 1910, $490.10, the balance found due for the hauling prior to October 5th, and $13 for hay and grain, making $769.33 in all, and that there was due to the defendants $6.60 for merchandise, and $30 deduction on hauling for which plaintiff was to make no charge, and at that time defendant paid to plaintiff $500, leaving due plaintiff the amount sued for, $232.73.
It is sufficient to say that, after a thorough examination of it, we find that it fully sustains the findings of the circuit court, and the decree is affirmed.
Affirmed.