Andersen v. Turpin

• Decision Date: 09 November 1943
• Citation: 172 Or. 420,142 P.2d 999
• Parties: ANDERSEN <I>v.</I> TURPIN ET AL.
• Court: Oregon Supreme Court

172 Or. 420

142 P.2d 999

ANDERSEN

v. TURPIN ET AL.

Supreme Court of Oregon.

Argued October 5, 1943.

Affirmed November 9, 1943.

Mechanics' liens

1. In subcontractor's suit to foreclose a mechanic's lien for labor performed on defendants' residence, it was incumbent upon subcontractor by his complaint to show that he had complied substantially with the statute entitling him to a lien.

Pleading

2. In determining sufficiency of subcontractor's complaint to foreclose a mechanic's lien, allegations of notice of lien prevailed over any discrepancy between them and complaint proper, where notice was set out in haec verba in an exhibit and was incorporated in the complaint by reference and complaint contained a specific allegation that the statements in the lien notice were true.

Mechanics' liens

3. In suit to foreclose a mechanic's lien for labor performed on defendants' residence, allegations of notice of lien, which prevailed over those of the complaint proper, showed that plaintiff claimed as a subcontractor under the original contractor.

Pleading

4. Necessary and material averments of a pleading cannot be supplied by an exhibit.

Pleading

5. Where an exhibit attached to the complaint is very foundation of pleading, if there is a variance between recitals of pleading and those of exhibit, the latter govern.

Mechanics' liens

6. In subcontractor's suit to foreclose a mechanic's lien for labor performed on defendants' residence, allegations of notice of lien that the contract was entered into between defendants' contractor and subcontractor were not necessarily at variance with allegations of complaint that contract was entered into between defendants and subcontractor, in view of statute making the contractor in charge of the construction of owners' agent.

Principal and agent

7. In action against a principal on a contract made by his agent, the contract may be declared upon either as having been made by the principal or by him through the agent.

Mechanics' liens

8. Where subcontractor's original complaint stated a cause for foreclosure of a mechanic's lien and was filed within statutory

time after recording notice of lien, an amended complaint filed after expiration of such time interjected no new cause of suit, notwithstanding the bringing in of the original contractor as a party defendant, but related back to the original complaint and the action was timely, where the original contractor was an unnecessary party.

Mechanics' liens

9. Where subcontractor's original complaint to foreclose mechanic's lien was filed within statutory time after recording notice of lien and amended complaint was filed after expiration of such time, and there was no substantial variance between recitals in amended complaint of the operative facts constituting the cause of suit and those in original complaint, and it fully apprised defendants of character and extent of claim and they were not misled by amended complaint, action was timely, notwithstanding that original complaint was not skillfully drawn.

Mechanics' liens

10. A subcontractor was required to file a lien claim within 30 days after he had ceased to labor or within 30 days after completion of the entire work on a residence.

Appeal and error

11. Point not raised in the lower court was not properly before the reviewing court.

Mechanics' liens

12. In subcontractor's suit to foreclose a mechanic's lien, lien notice, alleging that 30 days had not elapsed since completion of the building, showed that subcontractor had filed his lien claim within required 30 days after he had ceased to labor or within 30 days after completion of the entire work, and it was not necessary to state the actual date of completion.

Mechanics' liens

13. In subcontractor's suit to foreclose a mechanic's lien, original complaint incorporating allegations of lien notice that subcontractor intended to hold a lien upon the land upon which the residence was constructed together with a convenient space about the same or so much as may be required for the convenient use and occupation thereof, to be determined by the court was sufficient.

Pleading

14. Decree foreclosing mechanic's lien in favor of subcontractor for labor performed on defendants' residence would not be reversed on ground that original complaint contained no allegation as to the amount of land necessary for convenient use and occupation of the residence, where amended complaint was aided

by admission of the answer that all of the land described was necessary for convenient use and occupancy of the residence, and improvements.

Mechanics' liens

15. In subcontractor's suit to foreclose a mechanic's lien for labor performed on defendants' residence, complaint incorporating lien notice alleging that the lien was claimed for labor performed on a certain building, that defendants as owners had knowledge of the "construction" of such building and caused it to be done, and that, in the construction of the building, a specified person was contractor and agent of such owners, was sufficient.

Appeal and error

16. On appeal, where no transcript of the testimony was before the Supreme Court, the only question which the Supreme Court could consider was whether the pleadings upheld the decree.

Pleading

17. Fact that subcontractor's original and amended complaint, to foreclose a mechanic's lien for labor performed on defendants' residence, asked for a personal judgment against defendants to which subcontractor was not entitled, did not vitiate the complaint, since the "prayer" is technically no part of a "complaint".

Pleading

18. That the relief prayed for is greater than the facts alleged in the complaint warrant does not render the complaint demurrable on ground that it does not state a cause of suit.

Pleading

19. Where departure of reply from amended complaint was not brought to trial court's attention either by demurrer or by motion to strike, and defendants proceeded to trial upon the issues raised by the pleadings as a whole, without in some appropriate manner objecting to the departure, defendants waived it.

                  Necessity of alleging fact of agency in declaring upon contract
                made by party through agent, note, 89 A.L.R. 895. See, also, 2
                Am. Jur. 346
                  4 C.J.S., Appeal and Error, § 228
                

Before BAILEY, Chief Justice, and ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

Suit by Alfred Andersen against J.S. Turpin and another to foreclose a mechanic's lien. I.N. Richardson was made a party defendant, and plaintiff took a voluntary nonsuit as to him. From a decree foreclosing the lien, defendants appeal.

AFFIRMED.

Arthur H. Lewis, of Portland, for appellants.

James G. Swindells, of Portland (McCarty, Dickson & Swindells and C.W. Pecore, all of Portland, on the brief) for respondent.

HAY, J.

Plaintiff and respondent brought suit to foreclose a mechanic's lien for labor performed on a residence building constructed for and owned by defendants and appellants.

The lien notice was filed for record December 1, 1941. The complaint was filed May 19, 1942. It alleged that the defendants contracted with and employed plaintiff to do the work for which he claimed a lien, and showed substantial compliance with the statutory requirements. Details which were attacked by defendants will be mentioned hereafter. Judgment was demanded against the defendants and each of them for $527.85, the sum alleged to be due, with legal interest, costs and attorney's fees, and a decree foreclosing the lien was prayed for.

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of suit, in that there was a material variance between the contract alleged therein and that stated in the notice of lien. This demurrer was sustained by the court, with leave to amend. On July 23, 1942 plaintiff filed an amended complaint. The defendants moved to strike such amended complaint upon the ground that it changed substantially the cause of suit set forth in the original complaint and was such an amendment as was beyond the jurisdiction of the court to allow. This motion was overruled, whereupon the defendants demurred on the ground that suit to foreclose plaintiff's lien had not been commenced within the time limited by the Code, in that more than six months had elapsed between the filing of the notice of lien and the institution of suit to foreclose it. The demurrer was overruled, and defendants answered, making certain formal admissions and denials which, so far as material to the present discussion, will be considered in due course. Affirmatively, they pleaded that the plaintiff did not complete and finish his work, but, without just cause or excuse, abandoned it and left it in an uncompleted state. Further answering affirmatively, they alleged that they were obliged to expend the sum of $546.46 in completing the work left unfinished by plaintiff and in "doing over" a part thereof. The new matter was denied by the reply, but therein plaintiff impliedly admitted that he did not complete the work, stating as a reason therefor that the defendants had refused to permit him to do so.

After a hearing before the court, a decree was entered foreclosing plaintiff's lien for the sum of $377.85, with legal interest, certain minor disbursements, and attorney's fees. In arriving at this sum, the court allowed the sum of $150 as an offset against the amount prayed for, by reason of defects in plaintiff's work. From this decree the defendants have appealed.

It is the contention of the defendants that the original complaint did not state a cause of suit, and that, if the amended complaint did so, it was not filed until after the expiration of six months from the date of the filing of the notice of lien, as required by law. Section 67-107, O.C.L.A.; Shea v. Graves, 142 Or. 503, 509, 19 P. (2d) 406.

1. We have carefully considered the...