24 Or. 121 | Or. | 1893
delivered the opinion of the court:
1. This is an action brought against the defendant boat Victorian, under the provisions of the boat lien law (sections 3690 et seq), to enforce a lien for materials alleged to have been furnished by the plaintiffs to one J. F. Steffen, and to have been used by him as a contractor in the construction of the defendant boat. The record discloses that the sheriff of Multnomah County seized the boat, whereupon the Oregon Short Line Ry. Co., as defendant and claimant, filed its undertaking as provided by section 3698 of Hill’s Code, with D. P. Thompson and J. W. Troupe as sureties, and obtained its release and thereafter appeared in the action as such defendant and claimant. After trial the court rendered a judgment against the boat Victorian, and, also, under section 3701 of Hill’s Code, against the defendant company and its sureties in the undertaking.
2. The notice must be served on all parties whose interests are adverse to the party appealing. The question, then, is whether Thompson and Troupe, who have not appealed from the judgment, are to be deemed adverse parties so as to require them to be served with notice of
In Sheppard v. Steele, 43 N. Y. 56 (3 Am. Rep. 660), the lien and its enforcement in the state courts for materials furnished in the construction of a boat was upheld notwithstanding previously in The Josephine, 39 N. Y. 19, the enforcement of a lien for supplies furnished a domestic vessel at her home port was denied, and the same statute in that regard declared to be void, upon the ground that these different matters, although contained in the same statute, were not so blended, or one so dependent on the other, as to render the whole statute inoperative or void. Nor will we assume that a statute is void in part in order to defeat a right involved under another part. We regard the act and its amendment as one statute. We test the right claimed under it by viewing the statute as a whole. We construe them together as one statute. That a statute
In the case of The Iosco, Brown’s Adm. 495, a hull completed at the place of launching received a small cargo of flour as ballast, was towed with her spars on deck to another port, where her masts were stepped and the vessel put in condition for navigation, and it was held that the work was done in the building of a vessel, and that admiralty had no jurisdiction. Mr. Justice Longyear said: “ What libellants did and furnished were clearly by way of completing the construction of the vessel, and consti
4. The next objection involves the statute of limitations. Section 3706 provides that “All actions against a boat or vessel under the provisions of this title shall be commenced within one year after the cause of action accrued.” The record discloses that the defendant reserved exceptions to all evidence relating to materials furnished and used in the vessel more than a year prior to the commencement of the action. The contention is, as to such items, that the cause of action accrued more than one year prior to its commencement, and, therefore, within section 3706, the plaintiff had no lien as to such items, or a cause of action upon them. The facts show that the plaintiff furnished the material from time to time as it was needed for use in the construction of the boat, and that there were several payments made on the account during the interim. The mode of dealing between the parties indicates a running account during the process of the building of the boat. Each item was added to the account at intervals, according as it was ordered and furnished, and the aggregate of items, so furnished, constitutes the claim, less the credits, for the materials furnished in the construction of the boat. The claim was a running account for materials which passed into the vessel permanently during the progress of its construction. All the items in the account relate to one transaction, — the building of the boat, — and constitute it a continuous account, regardless of intervening balances. In such case it seems to us that the furnishing of the materials should be
5. The next objection relates to errors assigned in striking out on motion portions of the second amended answer. So far as the motion went to matters already in issue by the denials in the answer, there was no error. The grounds of the motion were, that the answer, in the particular specified, was sham, frivolous, and irrelevant. The provisions of the Code in reference to such motions are found in sections 75 and 85 of Hill’s compilation. Of two separate defenses contained in the answer, one is alleged as a defense, and the other as a partial defense, to-the cause of action. The first was struck out, as appears from the motion, on the ground that “the matters and
6. So, too, it is held that where there is a semblance of a cause of action or defense set up in the pleading, its sufficiency cannot be determined on motion to strike it out as redundant or irrelevant. In Walter v. Fowler, 85 N. Y. 625, it is said: “There is a semblance of a cause of action stated in the answer. Whether it was a valid counter-claim within the Code, is a question which should be determined either by demurrer or by motion on the trial, and not by a summary motion to strike it out as
7. Our statute (section 3690) provides that “every boat or vessel * * * constructed in this state * * * shall be liable and subject to a lien * * * for all debts due to persons by virtue of a contract express or implied, with the owners of a boat or vessel, or with the agents, contractors, or sub-contractors of such owner, or any of them, or with any person having them employed to construct * * * such boat or vessel on account of labor done or materials furnished by mechanics, tradesmen or others, in the building * * * such boat or vessel.” The contract of the owner with the contractor necessarily authorizes the contractor to procure materials to construct the boat. This being so, he was authorized to contract with the plaintiffs to furnish the material necessary to be used in the construction of the boat. The plaintiffs allege that at the
It is claimed that the allegation that it was a part of the contract that the payments so made should be in full of all claims of any kind whatsoever is fatal to the lien of the plaintiffs. The statute gives the lien upon furnishing the materials as a means of. securing payment therefor. The language is that the “boat shall be liable and subject to a lien” for a debt due the material man by virtue of a contract express or implied with the contractor on account of materials furnished in the building of such boat. The intent of the legislature that the material man shall have a lien on the boat or vessel is plainly and definitely de. dared, nor is there any suggestion of implied conditions or limitations to the right of lien as thus given. Hence, as Barclay, J., well said: “We have no right to assume, without more, that the statute thereby meant to say that such a lien should only exist when the owner had not fully paid the contractor, and in no wise for more than the original contract price ”: Henry Coatsworth Co. v. Evans, 97 Mo. 47 (3 L. R. A. 332; 10 S. W. Rep. 868). The lien is an incident which the law attaches to the transaction, and can be waived or discharged only by an agreement or understanding to that effect on the part of the person entitled to it. In the City of Salem, 7 Saw. 481 (10 Fed. Rep.
The judgment is affirmed.