Allen v. Elwert

• Decision Date: 27 April 1896
• Citation: 29 Or. 428,44 P. 823
• Parties: ALLEN et al v. ELWERT et al.
• Court: Oregon Supreme Court

44 P. 823

29 Or. 428

ALLEN et al v. ELWERT et al.

Supreme Court of Oregon

April 27, 1896

Appeal from circuit court, Multnomah county; L.B. Stearns, Judge.

Action by the East Portland Mill & Fixture Company against Mrs. J.B Elwert and others to foreclose mechanics' liens; Wm. O Allen and others were made parties defendant. From a judgment for plaintiff and defendant lien claimants, Mrs. Elwert appeals. Modified.

E. Mendenhall and B.B. Beekman, for appellant.

W.D Fenton, for plaintiff and respondent. X.N. Steeves, for respondents W.O. Allen & Bro. Dell Stuart, for respondents E.K. Jones & Co.

BEAN C.J.

This is a consolidated suit to foreclose four mechanics' liens against the property of Mrs. Elwert, the defendant and appellant herein. The East Portland Mill &amp Fixture Company having filed a complaint for the foreclosure of two liens in its favor, for $241.40 and $105.30, respectively, for materials furnished to the appellant, to be used, and which were actually used, in the alteration and repair of her building, the respondents E.K. Jones & Co. and William O. Allen & Bro., who had previously instituted separate suits to foreclose mechanics' liens on the property of defendant, appeared as defendants therein, and set up their respective liens by answers to said complaint. The suits were thereafter consolidated, testimony taken, arguments heard, findings of fact and conclusions of law filed, and a decree entered, allowing the East Portland Mill & Fixture Company its liens for $225.60 and $105.30, respectively, the lien of E.K. Jones & Co. for $181.64, and the lien of Allen & Bro. to the amount of $853. From this decree Mrs. Elwert appeals.

For convenience, the respective liens involved in this suit will be considered separately, and in the following order: (1) The lien of the East Portland Mill & Fixture Company, for $241.40; (2) its lien for $105.30; (3) the lien of E.K. Jones & Co.; and (4) the lien of W.O. Allen & Bro.

It is claimed that the notice of lien of the East Portland Mill & Fixture Company does not contain a true statement of its demand, after deducting all just credits and offsets, as required by section 3673 of 2 Hill's Ann. Laws Or. The aggregate amount of the demand, as stated in the notice, is $991.40, of which $770 is claimed under a special contract for mill work and material furnished for said building according to certain plans and specifications, and $221.40 for material alleged to have been furnished, in addition thereto, at the instance and request of Mrs. Elwert. Deductions for cash payments are credited to the amount of $750, leaving a balance of $241.40, for which the lien is claimed. It is admitted that all the payments made by Mrs. Elwert to the company are properly credited, but it is contended that the lien is void because the claimant did not deduct from the amount claimed the difference between the value of the sash pulleys and carpet strips actually furnished by plaintiff and those specified in the contract. The court found that the appellant should be credited with $15.80 on this account; but it clearly appears, from the evidence, that the sash pulleys and carpet strips furnished by the mill company were knowingly accepted and actually used by her, and that the failure to make such deduction was not fraudulent or intentional. It was simply an honest mistake as to the value of the materials furnished, and would not invalidate the lien in any case, and certainly not in a case like this, where the lien is sought to be enforced against the person to whom the materials were actually furnished, and with whom the claimant contracted. Rowland v. Harmon, 24 Or. 529, 34 P. 357; 2 Jones, Liens, § 1408.

It is also claimed that the lien is defective because it does not state the name of the person to whom the materials were furnished. The notice of lien states, and the complaint alleges, that the materials were furnished and delivered to Mrs. Elwert at her special instance and request. The evidence shows that they were furnished on her personal account, and were ordered either by herself or her foreman or agent in charge of the work, and were delivered at the building, and received and used therein. Under these circumstances, she was properly named in the lien notice as the person to whom the materials were furnished, and it was not necessary to state the name of the agent who ordered each article, or to whom it was actually delivered. Where a lien is claimed against the property of one person, for materials furnished to and on account of another, the law requires the notice of the lien to state the name of the person to whom they were furnished; but, where a lien is sought against the property of a person with whom the contract was made, and to whom the materials were furnished, it is sufficient to give the name of the owner as the person to whom they were furnished, although, in fact, they may have been ordered or received by an agent or employé of such owner. In such case, the act of the agent is the act of the principal.

It is next contended that it does not appear, from the evidence, that the material for which the lien is claimed was actually used in the building liened. Conceding, but without deciding, that, under the mechanic's lien law of this state, materials furnished for the building must be actually used in its construction, alteration, or repair, in order to become the foundation of a lien upon it, we think the evidence in this case is sufficient to support the findings of the trial court sustaining the lien. It, perhaps, does not affirmatively and specifically appear that each and every separate article furnished to be used in the building was actually so used; but it does appear that, upon the appellant's order, they were delivered at the building for that purpose, were received by her, and, as to the greater part of them, used in the building. And there is nothing to contradict this, or even tending to show that any of the materials so delivered were used elsewhere, or for any other purpose, or that they did not, in fact, go into the building. The proof is therefore as complete and specific upon this point as it could well be, unless the lien claimant is required to have some person present during the construction of the building to keep a daily and hourly record of the materials used; and this the law does not require. "To require direct and positive testimony," says Mr. Justice Brewer, "that, as to each specific article delivered, it was in fact used in the buildings, would make the mechanic's lien law more of a burden and a trap than a blessing and a help. When materials are contracted for use in a proposed building, when they are delivered in pursuance of such contract, and when the building is in fact completed, and there is no testimony tending to raise even a suspicion that the materials therefor were elsewhere obtained, or that those contracted for were not used therein, and especially when some of the materials are shown to have actually entered into its construction, it is fair to conclude and say that such materials did in fact go into the building, and that the seller has a mechanic's lien therefor." Rice v. Hodge, 26 Kan. 170. Under these circumstances, the proof is amply sufficient to support the lien, even under the rule of law contended for by the defendant.

The contention is also made that the articles charged for by the fixture company as extras are in fact included in the special contract between the company and the appellant. This contract is in writing, and was signed by Mrs. Elwert and the fixture company, in the presence of Carrie M. Elwert and G.H. Vore and is an agreement to furnish the mill work for said building for a certain sum, in accordance with certain plans and specifications, which were delivered to the mill company at the time the contract was made, and upon which its manager, Mr. Lambert, made the estimate of the value of the work required. The plaintiff offered in evidence what it claims to be the specifications delivered to it at the time the contract was made, and under which the work was to be performed, while the appellant offered in evidence what she claims to be a copy thereof. These two specifications are materially and substantially different. Those offered by the appellant, and which she claims are the specifications for the work agreed to be furnished by the mill company, call for much more work than plaintiff's copy. The court below found that the specifications offered by the mill company were the true ones and that the work charged as extra was not included therein; and this finding is, in our opinion, fully sustained by the evidence. The appellant lays much stress upon the fact that the specifications offered by her appear to have been signed by the East Portland Mill & Fixture Company, by H.M. Lambert; but, to our mind, the evidence is very clear that they were not signed by him, or any one else authorized to bind the company. Mr. Lambert, as well as Mr. Vore, who was present when the contract was made and the papers signed, both so testify, and witnesses familiar with Mr. Lambert's handwriting testify that the signature is not in his handwriting; and this is borne out, not only by the physical evidence of the signature itself, which shows on...