117 P. 291 | Or. | 1911
delivered the opinion of the court.
The complaint is in the usual form. The defendants, by their answer, allege that no more than 562,614 bricks were delivered by plaintiff and used in the building, amounting to $4,500.11, upon which they were entitled to a credit of $12, and deny the allegation as to attorneys’ fees.
From the evidence it appears that the plaintiff commenced to deliver the brick about August 12, 1909, finishing his delivery thereof about September 27, 1909. The brick work was completed about October 13, 1909, and
As to the necessity for prompt enforcement, it is said in Phillips, Mechanics’ Liens, § 322:
“It has been the policy of nearly every state which has established a system of mechanic’s lien to protect the rights of owners and others who may become interested in the property, by requiring those who are entitled to its benefits to be prompt in the enforcement of their claims. The privileges secured mechanics and material-men are unusual in their character, effective and sometimes oppressive in their behalf, and it is only just that they should be required to be diligent in their enforcement.”
This reasoning and a careful examination of our statute would indicate that the lien for materials can be filed at any time after the furnishing of the last material, and before the expiration of 30 days from the completion of the building, when the materials for its construction is furnished to the contractor or subcontractor in charge thereof, who, by Section 7416, L. O. L., “shall be held to be the agent of the owner for the purposes of this act.” Such we think, under the decisions construing the above mentioned statutes in Ainslie v. Kohn, 16 Or. 363 (19 Pac. 97), and Coffey v. Smith, 52 Or. 538 (97 Pac.
For the purpose of ascertaining the number of cubic feet therein, two competent engineers measured the walls of the building, Mr. A. H. Richmond computing the number as 34,756, and Mr. D. W. Taylor as 34,444 feet; the number of brick to each cubic foot being variously estimated at from 18 to 21. The discrepancy in their measurements created a difference of about 6,000 bricks, taking an average estimate per cubic foot. Then there is the usual waste to be considered, making it evident that any estimate is inaccurate, and, unless agreed to by the parties themselves, or rendered absolutely necessary, such a method should not be adopted, except in connection with the other evidence. From a consideration of all the evidence, taking the testimony of the plaintiff and his foreman, and the tickets, and checking the latter by the estimates of the different experts, we are of the opinion that 603,300 bricks were delivered to defendants and used in the building, such being the number claimed to have been delivered by plaintiff, after deducting the 20,000 estimated as unused.
It follows that the decree of the lower court must in all things be affirmed, and it is so ordered.
Affirmed.