Ainslie v. Kohn

• Decision Date: 07 June 1888
• Citation: 19 P. 97,16 Or. 363
• Parties: AINSLIE et al. v. KOHN et al.
• Court: Oregon Supreme Court

19 P. 97

16 Or. 363

AINSLIE et al. v. KOHN et al.

Supreme Court of Oregon

June 7, 1888

Appeal from circuit court, Multnomah county.

(Syllabus by the Court.)

Where a statute, which gave to mechanics and others a lien upon buildings and other structures for work done, and material furnished in the construction thereof, was repealed by another statute which also gave such lien, and provided that nothing contained therein should affect any lien theretofore acquired, but that the same should be enforced by the provisions of the repealing act, and parties had furnished such work and material during the existence of the repealed statute, and were engaged in furnishing such work and material at the time of the repeal, and continued thereafter so to do, and would have had such lien to the extent of the original contract price, or of any installment thereof, to become due thereon in accordance with the terms of the original contract, by giving written notices to the employer of the nature and extent of their claims against the original contractor, and the repeal of the former statute, and adoption of the subsequent one, took place before such an installment became due, held, that, notwithstanding such written notice had not been given, the lien provided in the repealing act would, upon a compliance with its provisions, attach in favor of such parties to the extent of such installment.

Held, also, that, as the later statute had dispensed with the necessity of giving to the employer the written notice, the lien would attach without it.

Held that, under section 5 of the act of the legislative assembly of the state, entitled 'An act for securing liens for mechanics, laborers, material-men, and others, and prescribing the manner of their enforcement;' approved February 14, 1885,-parties claiming the benefit of said act, on account of labor performed or material furnished in the construction of a building, except the original contractor, were only required to file their claims within 30 days after the completion of the building, when the labor was performed or material furnished for the purpose of completing it.

Held, that requiring a claim to be filed containing a true statement of the demands, as provided for in said section 5, is not to be construed as necessarily meaning an itemized statement; nor that the provision in said section 5, requiring to be filed a claim containing a true statement of the demand, 'after deducting all just credits and offsets,' is to be construed as meaning that the statement shall contain those veritable words; nor that the requirement in said section 5 that the claim shall be verified by oath of the claimant, or such other person, and that if the statement of the demand was true as a matter of fact, and was shown to have been verified by the oath of the claimant or other person having knowledge of the facts, before an officer authorized to administer an oath, it would be entirely sufficient.

H.B. Nicholas, for appellant.

Emmons & Emmons for Thompson, De Hart & Co.

Dolph, Bellinger, Mallory, & Simon, for Mrs. Kohn.

THAYER J.

This appeal is from a decree of the circuit court for the county of Multnomah, rendered in a suit in which said George Ainslie & Co. were plaintiffs and James Loynachan, Bertha Kohn Thompson, De Hart & Co., J.C. Bayer, and John Turnbull were defendants. The suit was brought to foreclose a mechanic's lien which the plaintiffs claimed to have upon certain premises, situated in the city of Portland, owned by said Bertha Kohn. They alleged in their complaint in the suit, in substance that during the month of June, 1885, the defendant Loynachan was building and constructing a double tenement house for said Bertha upon the premises referred to, and that during such times, including the time between the 1st and 18th days of said month, and while said house was in course of construction, they furnished, sold, and delivered to said Loynachan, upon a contract they made with him, doors, sash, and other material, and did certain glazing and mill work for the completion of the said house, amounting in value to the aggregate sum of $683; that the said material was furnished and said work done, from time to time, as required in the construction of the house, up to and including the 18th day of June 1885, at which time said Loynachan completed said building; that the said material so furnished, and work done, were used and entered into the construction of the said house, and became a part of it; that the plaintiffs, on the 7th day of July, 1885, and within 30 days after the completion of said building, and within 30 days after they had ceased to furnish said material, and do said work therefor, duly filed with the clerk of Multnomah county a claim containing a true statement of their said demand, after deducting all just credits and offsets, and containing the other matters required by law to be stated; which claim was duly verified, and which the said clerk duly recorded in the proper book kept by him in his office for that purpose. They also alleged in the complaint that the defendants Thompson, De Hart & Co., Bayer, and Turnbull had, or claimed to have some claim or lien upon said premises. The latter defendants severally filed answers in said suit setting forth the nature of the liens claimed by them respectively. Said Thompson, De Hart & Co. alleged in their answer, in substance, that on and between the 16th day of March and the 17th day of June, 1885, and while said defendant Loynachan, was building and constructing the house mentioned and referred to in said complaint, they furnished, sold, and delivered to said Loynachan, to be used in the construction and erection of said building, certain material of the reasonable and agreed value of $263.53, which sum he promised and agreed to pay them upon the delivery thereof; that said material was furnished from time to time, as required in the construction of the building, up to and including the 17th day of June, 1885, at which time it was completed; that the said material was used and entered into the construction of the building, and became a part of it; that no part of said $263.53 had been paid; that said defendants, on the 25th day of June, 1885, filed with the clerk of Multnomah county, in due form, a claim for said amount, with a statement containing a notice of intention to hold a lien upon said premises, for its payment, and that said clerk duly recorded said claim in a book kept for that purpose in his office. The other defendants referred to claimed in their answers liens upon the said premises for work and material furnished by them respectively in the construction of said house, but as their claims are not in question on this appeal, it is not necessary to mention the facts set out therein. The defendant Bertha Kohn filed an answer to the complaint, in which she denied that said Loynachan was constructing the house for her in June, 1885, or that plaintiffs furnished any material or work for said house later than June 1st of that year, and she denied any knowledge or information sufficient to form a belief as to whether any statement or notice of claim against the premises was filed with the clerk of said county of Multnomah. She alleged in her answer that the said house was built under a contract entered into between her and said Loynachan March 2, 1885, and was completed prior to June 1st of that year, and that she never received any notice of plaintiff's claim. The case was referred to a referee to find the facts and conclusions of law, and the referee appointed for that purpose found against said plaintiff, and also against the said defendants Thompson, De Hart & Co., and his report thereon having been confirmed by the said circuit court, the decree was entered in accordance therewith, from which the said appeal is taken. The proofs submitted to the referee showed that said Loynachan, on the 2d day of March, 1885, agreed in writing with Mrs. Kohn to furnish all the various kinds of materials and labor (except plumbing and gas-fitting, staining, varnish, painting, graining, sewers, drains, lathing, and plastering) necessary to erect and completely finish the building referred to in the pleadings. The work was to be under the superintendence of architects, was to be pushed fast enough to insure its final completion by the 1st of June, 1885, and Loynachan was to pay five dollars, for each day delayed beyond that time. The contract price was $3,695, to be paid in four installments as the work progressed; the last one, $1,295, was to be made when the building was entirely finished and accepted by Mrs. Kohn, or the superintending architect for her. The architect had power to stop and report any work or materials not in accordance with the drawings and specifications. Loynachan commenced the work as agreed upon in the writing, and on the 3d day of March, 1885, entered into a contract with the plaintiffs that they should furnish the mill work, glass, and do the glazing on said house for $1,268, $600 to be paid after delivery of the cornice lumber, the brackets, window-frames, and outside finish; the balance after the completion of the building. The plaintiffs furnished the said mill work, and did the glazing for the house under the said contract with Loynachan, between the 3d of March and the 1st of June, 1885, excepting that light was put in the transom, and the seat on the water-closet was changed by Loynachan, at the direction of the architect, and finished by plaintiffs after June 1st said year. Loynachan paid plaintiffs on account upon said contract, on the 4th day of May, 1885, $600. The plaintiffs furnished two openings of inside blinds, and changed the front doors to glass, in addition to the material furnished under the...