117 P. 457 | Or. | 1911
delivered the opinion of the court.
Testimony was offered by witness who appeared for defendants tending to show that some of the machinery, tools, etc., described in the complaint was never consigned to plaintiff, and such being the case no lien could be imposed thereon. In a deposition Enos stated, upon .oath, that after consigning to the Dufur Oil Company machinery, with sight drafts attached, and on account of which $2,500 was paid by plaintiff, he shipped in his own name other appliances, saying:
“There were blocks and tackle worth probably in the neighborhood of $50 or $60; wrenches, $20; there was a lubricator, $16 — maybe less — $12; bits, $70; pipe casing tongs, $135.”
“These things which you shipped after the $2,500 had been advanced were simply in completion of your well-drilling outfit?”
“A. Yes.”
“Q. You understood, and everybody else understood, that they were held as security for the $2,500 advanced?”
“A. Yes; that was the understanding, and considered a part of it.”
The deposition of Enos further shows that the Oregon Drilling Company was incorporated October 16, 1907, and on December 10th following it entered into an agreement with one of the defendants, in referring to which be was asked:
“Then, as I understand you, at the time that this contract before mentioned was entered into by and between the Oregon Drilling Company and John Marsh, the Ore^ gon Drilling Company owned all the well-drilling machinery, supplies, tools, apparatus, and appliances that were used in the drilling of the well or wells contracted for by the Dufur Oil Company and you, as the Pacific Well Drilling Company?”
Without objection or exception, Enos replied:
“Yes; and also the contract with the Dufur Oil Company was assigned by the Pacific Well Drilling Company to the Oregon Drilling Company.”
It will be remembered that the decree provides that upon a sale of the machinery, if the sum of money realized therefrom be sufficient to satisfy plaintiff’s demand, the remainder should be applied to Slusher’s judgment, after liquidating which, if any money then remained, it should be given to Marsh on account of his judgment. The evidence shows that Slusher’s action was commenced February 29, 1908, when he secured a writ of attachment by which the machinery was seized, but such possession was soon thereafter surrendered, and the lien of the levy released. A notice of garnishment, however, was served
The “attempted” levy of the executions by the sheriff assuming to take possession of the personal property, which was then in plaintiff’s possession, created no lien upon the machinery, and if the judgments respectively secured by Slusher and Marsh were rendered against the same defendant no preference right should have been allowed by the seizure which was undertaken. It will be kept in mind that Slusher’s judgment was given against Enos, while Marsh’s judgment was against the Oregon Drilling Company, which was not a party to this suit, and, so far as disclosed by the pleadings herein, was not in privity with either party. In view of the pleading and of the prayer of the complaint, the decree awarding to Slusher a right superior to that of Marsh was not erroneous in that particular.
There is no averment in the answers filed herein by Slusher or Marsh, whereby plaintiff could be rendered liable to pay any part of their judgments by reason of the stipulation in the contract with Enos that it would pay on account of labor, fuel, and necessary expenses incurred by him in drilling, “but not to exceed the sum of two and one-half ($2.50) dollars for each foot such well may be bored.”
Affirmed : Rehearing Denied.