89 P. 737 | Or. | 1907
delivered the opinion.
As we view the matter, it is not necessary to determine the merits of plaintiff’s objection to the sixth finding. The gist of this action is whether there was a lien upon the logs at the time they were taken and sawed up by the defendant company. If there was, and defendant injured, impaired or destroyed them or rendered their identification difficult, uncertain or impossible, without the express consent of the person entitled to such lien, it is liable in damages therefor' to the lienholder to the amount of his lien, unless said lien was waived; and, if there was no such lien, it would not be liable. So, then, it is wholly immaterial whether or not the company was afterwards garnished by a creditor of the former owner of the logs.
“I just came up the same as I always done ever since I have been down there, and collected the money, or either gave Fischer an order and he collected it, and came back and paid it.”
And, again being asked what was the understanding between them, he answered:
“There was no understanding. Of course, I supposed they wanted their money as far as the raft-would go. If there wasn’t enough, to pay them, they went back and made enough to pay them.”
The laborers had also come to Portland, and were at the hotel expecting to receive their money;- but this proves no more than
In Jones v. Webster, 48 Ala. 109, where a mortgagor was authorized by the terms of the mortgage to sell mortgaged prop
“Any person, firm or corporation who shall injure,- impair or destroy, or who shall render difficult, uncertain or impossible of identification, any saw logs, upon which there is a lien, as herein provided, without the express consent of the person entitled to such lien, shall be liable to the lienholder for the damages*284 to the amount secured by his lien, which sum may be recovered by an action against such person, firm or corporation, without bringing the suit as provided for in Section 5687.”
By the express provisions of this section the remedy is for an injury to the lien, which consists in having rendered it difficult or impossible for the lienholder to secure the benefit of a foreclosure of his lien as provided elsewhere in the statute, and is not for an injury to a right in the property, and likewise the remedy is given to the lienholder. For these reasons, it is an incident of the lien itself, and an assignment of the lien must necessarify carry with it the right to the remedy, although the alleged injury was committed before the assignment. “In the absence of any stipulation or provision in the contract of assignment concerning the securities or other incidents, an unqualified assignment of a chose in action carries with it, as an incident to the chose, all securities .held by the assignor as collateral to the claim, and all rights incidental thereto. * * As the right to the chose and its incidents pass to the assignee thereof, so does the right to the remedies which the assignor had for the enforcement of the same”: 4 Cyc. 69-71. Under this view of the law, the right of action for the injury to the lien was vested in the plaintiff by the assignment alleged.
“That said labor and assistance were so performed and rendered upon said propertjr between the 12th day of March, 1904, and the 12th day of September, 1904, and the rendition of said services was closed on the 12th day of September, 1904, and thirty days have not elapsed since that time.”
In the absence of a demurrer, the foregoing statement, being a part of the complaint, should at least be considered as amount-
-“That between March 12, 1904, and September 12, 1904, Frank Miller performed labor and rendered services for defendant Melntire, * * for 131-J days, * * and (on) said September 20, 1904, said Miller filed in the office of the County Clerk of Columbia County the notice of lien,” etc.
It cannot be ascertained from this finding as to when the services closed. They might have terminated more than 30 days prior to September 20, 1904, and still the finding be true.
For these reasons, the judgment should be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.