Willamette Lumbering Co. v. McLeod, 27 Or. 272

Willamette Lumbering Co. v. McLeod

27 Or. 272 | Or. | 1895

Lead Opinion

Per Curiam.

1. The counsel for the appellant contends that this notice fails to state the contractual relations existing between the plaintiff and the defendant *275Lydia Henry. The statement that she was the owner of the property, and caused said building to be erected by McLeod, to whom the plaintiff furnished the materials, shows a contractual relation between the parties sufficient to authorize McLeod to bind the property by his contracts for material furnished or labor performed in the construction of said building.

The evidence, however, shows that the contract was entered into between the defendant McLeod and Charles K. Henry, who was, at the time of its execution, and until March sixteenth, eighteen hundred and ninety-three, the owner of the property. It also appears that McLeod commenced to work on the building about January tenth, and that while he was putting up the frame the defendant Lydia Henry ordered a change in the plans by requiring double sliding doors in one of the partitions, which McLeod made, after consulting with Charles E. Henry, who told him that the house was for Lydia Henry, and ordered him to make such changes as she desired; that she frequently visited the building, suggested changes therein, and supervised its construction. Charles E. Henry, as a witness for Lydia Henry, testified that when the contract was entered into he intended to have the building constructed for himself; that Lydia Henry had no interest in the property until it was conveyed to her; that it was understood between him and said Lydia that he was to pay for the building, and that he had paid the whole contract price, except eight hundred and thirty-nine dollars. From this evidence it is apparent that Charles E. Henry would in an action at law be personally liable on the contract for the full value of the materials furnished and labor performed in the construction of said building, while the property benefited by the improvement would in equity be also liable therefor to the extent of its value. The testimony of Me*276Leod shows that Lydia Henry was the equitable owner of the property at the time the contract was entered into, and that the house was being constructed for her by Charles K. Henry, as her agent. This testimony is corroborated by other facts and circumstances which lead us to believe it to be true.

2. It is contended that Charles K. Henry, being the legal owner of said property when the construction of said building was commenced, was the proper person to be named in the notice as the owner thereof, and that the statement that Lydia Henry was the owner renders the lien void. It is the building which should be charged with the lien, and the notice of such lien should state the name of the owner at the time the lien is filed, either directly or by necessary inference. Any other interpretation of the statute would require the lien claimant to state the names of all the owners of the property from the time the building was commenced until the lien was filed, in cases where the premises had been conveyed during the construction of the building: Collins v. Snoke, 9 Wash. 566 (38 Pac. 161); Edwards v. Derrickson, 34 N. J. Law, 322; Robins v. Bunn, 34 N. J. Law, 322; Amidon v. Benjamin, 128 Mass. 534; Kezartee v. Marks, 15 Or. 529 (16 Pac. 407); Gordon v. Deal, 23 Or. 153 (31 Pac. 287). The statement that Lydia Henry caused the building to be erected upon land owned by her is equivalent to saying that she was the owner of the building: Curtis v. Sestanovich, 26 Or. 107 (37 Pac. 67).

The lien notice of Fleming and Clark, assigned to the defendant Beach, is nearly identical in its statements with that of the plaintiff, except that it avers that Lydia Henry is the owner of the lot and house, and hence it needs no consideration. The lien of Whittier, Fuller and Company, assigned to the defendant Plummer, states: “That said N. E. McLeod was the agent of Charles *277Henry and the said Charles Henry is the reputed owner of said building and of the land upon which it stands, and caused said materials and labor to be used and performed,” and the lien of the defendant Beach states: “That during said time Charles Henry was and still is the owner and reputed owner of said lot and of said house, and caused the said house to be constructed.” The only question involved in the consideration of these liens is the statement of the ownership of the property sought to be charged therewith at the time they were .filed. The statute (section 3673, Hill’s Code,) requires the statement of the name of the owner or reputed owner if known, and these notices having complied with its requirements must be held valid, and the decree will therefore be affirmed. Affirmed.

Dissenting Opinion

Mr. Chief Justice Bean,

dissenting.

I concur in the result, but not in that portion of the opinion which assumes that a claim of lien must upon its facé show the contractual relation between the owner of the building and the party to whom the materials were furnished or for whom the labor was performed. It is true there is a suggestion to that effect in Rankin v. Malarkey, 23 Or. 593, (32 Pac. 620,) and Curtis v. Sestanovich, 26 Or. 107, (37 Pac. 67,) but the question was not directly involved or necessary to a decision of either of these cases, and hence I did not formally dissent at the time. In my opinion the claimant observes the necessary legal requirements when he files in the proper office “a claim containing a true statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, and also a description of the property to be charged with said lien sufficient for iden*278tification,” and to exact of him anything more is imposing a burden not authorized by law. When the statement contains all the facts required by statute to be contained therein, the question as to whether the lien attaches for materials furnished or labor performed for some person whom the statute makes the agent of the owner, as provided in section 3669, or whether it attaches by virtue of section 3672, is a matter of pleadings and proof. The statutes of California and New Mexico are similar to ours in this respect, and I think the view expressed by the courts of those states in Davies-Henderson Lumber Company v. Gottschalk, 81 Cal. 641, (22 Pac. 860,) and Post v. Miles (N. M.), 34 Pac. 586, is the better construction of the statute.