130 P. 52 | Or. | 1913
delivered the opinion of the court.
The question here to be determined arises between the logging company and the proprietor of the property upon which it claims a lien. It is established without serious dissent that Sparks, the original contractor, called upon the logging company for separate bids for the mill work for each of the three dwellings, and, having received such separate proposals, accepted them separately, so that each party knew in advance what mill work was to be furnished for each of the three dwellings. At the request of the contractor, as the work progressed, the logging company shipped him to be, and which was, used in the three dwellings three car loads of stuff composed of the mill work included in its bids, together with other material consisting of rough lumber, flooring, and the like. What are known in the case as the two small dwellings were finished before the Sholes residence was completed. The logging company had kept an account on its books, wherein were entered all the items of lumber and mill work furnished him in any way. Upon this account Sparks had made some payments, without designating upon what building they were to be applied, and the logging company had credited them in this account. The time within which the logging company could have filed a lien upon the two small dwellings had expired; and, as the period for filing a lien upon the Sholes residence was about to lapse, an agent of the company went to Washington County for the purpose of adjusting the balance due from Sparks for all the material furnished. With the acquiescence of Sparks the agent applied the payments mentioned upon the amount due on the small dwellings, filed a lien on the Sholes residence for the balance remaining unpaid on account of material of all kinds used in that building, and began an action at law to recover the other claims due on the small houses. Sparks made no objection to this application of the payments
The proprietor of the real property sought to be charged objects to the lien of the Spaulding Logging Company on two grounds: First, that it is a lump charge which includes materials furnished for all three of the houses; and, second, that Sparks and the logging company had no right to apply all the payments made on the open account by the former to the amounts due on the two small dwellings, and thus to allow the claimant to look solely to the Sholes residence by virtue of its lien for the amount due on .that building.
Reversed.