Anderson v. Chambliss

Decision Date21 October 1953
Citation199 Or. 400,262 P.2d 298
PartiesANDERSON et al. v. CHAMBLISS et al.
CourtOregon Supreme Court

Sam Kyle, Albany, Willis, Kyle & Emmons, of Albany, on the brief, for appellants.

Karl T. Huston, Corvallis, Huston & Thomas, and LaVerne M. Johnson, of Corvallis, on the brief, for respondents.

Before LATOURETTE, C. J., and WARNER, TOOZE and PERRY, Justices.

TOOZE, Justice.

This is a suit brought by Glenn M. Anderson and L. W. Anderson, dba Anderson Bros. Construction Co., as plaintiffs, against Sizer Chambliss, Jeanne S. Chambliss, his wife, and First Federal Savings & Loan Association of Corvallis, Oregon, as defendants, to foreclose a lien for labor and materials furnished by plaintiffs to defendants Chambliss in the construction of a dwelling house upon land owned by said defendants in Benton county, Oregon. The trial court entered a decree dismissing plaintiffs' suit 'without prejudice to plaintiffs to pursue any remedy they may have at law', on the ground, as stated in the decree, 'that the complaint filed herein fails to state a cause of suit against the defendants or either of them'. Plaintiffs appeal.

The lien claimed by plaintiffs is based upon § 67-101, O.C.L.A., which in part provides:

'Every mechanic, * * *, contractor, * * * laborer, * * * performing labor upon or furnishing material, * * * to be used in the construction, alteration or repair, either in whole or in part of any building, * * *, shall have a lien upon the same for the work or labor done * * * or material furnished at the instance of the owner of the building * * *.'

Plaintiffs' complaint in this suit and their lien notice are based upon the theory that plaintiffs were original contractors in furnishing to the defendants Chambliss the labor and materials used in the construction of the dwelling house in question.

The mechanics' lien law does not define the term 'original contractor'. However, in numerous decisions this court has held that an original contractor within the meaning of the statute is one who furnishes labor or materials and labor on a contract direct with the owner. Drake Lumber Co. v. Lindquist, 179 Or. 402, 418, 170 P.2d 712; Barr v. Lynch, 163 Or. 607, 613, 97 P.2d 185; Shea v. Graves, 142 Or. 503, 510, 19 P.2d 406.

As will hereafter appear, the allegations of the complaint, as well as the statements contained in the lien notice, sufficiently charge that plaintiffs bore the relationship of original contractors to the defendants Chambliss. The evidence upon the trial conclusively established that fact.

Section 67-105, O.C.L.A., provides:

'It shall be the duty of every original contractor, within 60 days after the completion of his contract, and of every mechanic, * * *, laborer, or other person, save the original contractor, claiming the benefit of this act, within 30 days after the completion of the alteration or repair thereof, * * * to file for recording with the county clerk of the county in which such building or other improvement, or some part thereof, shall be situated, a claim containing a true statement of his demand, after deducting all just credits and offsets, with the name of the owner, * * *, and also the name of the person by whom he was employed * * *, and also a description of the property to be charged with said lien, sufficient for identification, which claim shall be verified by the oath of himself or of some other person having knowledge of the facts.' (Italics ours.)

It is well established in this state that because the right to a lien is purely statutory, a claimant to such a lien must in the first instance bring himself clearly within the terms of such law. The statute is strictly construed as to persons entitled to its benefits and as to the procedure necessary to perfect the lien. A complaint in a suit to foreclose such a lien, to be sufficient to state a cause of suit, must allege every fact necessary to show that the claimant has complied substantially with the provisions of the statute entitling him to a lien. However, when the claimant's right to a lien has been clearly established, the law will be liberally interpreted toward accomplishing the purposes of its enactment. Barber v. Henry, Or., 252 P.2d 802, 806; Ward v. Town Tavern, 191 Or. 1, 14, 228 P.2d 216, 221; Timber Structures v. C. W. S. Grinding & Machine Works, 191 Or. 231, 246, 229 P.2d 623, 25 A.L.R.2d 1358; Drake Lumber Co. v. Lindquist, supra; Andersen v. Turpin, 172 Or. 420, 425, 142 P.2d 999.

In plaintiffs' complaint it is alleged:


'That plaintiffs at the special instance and request of the defendants Sizer Chambliss and Jeanne S. Chambliss between the 7th day of September, 1949, and the 8th day of March, 1950, both inclusive, furnished to said defendants labor, skill, services and materials for the reasonable value of $14,986.24.


'That said labor, skill, services and materials were furnished to said defendants in connection with the construction of a dwelling house situated upon the following described real property, to-wit: [Property described by metes and bounds.].


'That the defendants Sizer Chambliss and Jeanne S. Chambliss are the owners of the above-described real property and said defendants had knowledge of the labor, skill, services and materials furnished in connection with the construction of said dwelling house.


'That heretofore and on the 1st day of May, 1950, plaintiffs filed their notice of lien upon said real property above described in the office of the County Clerk of Benton County, Oregon; that a copy of said lien is hereto attached, marked Exhibit 'A' and by reference made a part of this complaint.'

The foregoing constitute all the allegations of the complaint material to this opinion. Nowhere in the complaint is it alleged affirmatively, either directly or indirectly, that the contract was completed, giving the date of such completion, nor is it alleged therein that the contract was not completed, and stating a valid reason for such failure to complete it.

Under the provisions of § 67-105, O.C.L.A., supra, in order to perfect a valid lien, it is mandatory that an original contractor file his claim within 60 days 'after the completion of his contract'. In a complaint to foreclose such a lien, it is necessary to charge that the contract was completed and to give the date of such completion, or if, for just cause, it was not completed, the reason therefor and the date on which the last labor or materials were furnished. In other words, it must affirmatively appear from the allegations contained in the complaint itself that the lien notice was filed within the 60 day period as required by the statute. A complaint that does not contain such essential allegation (or allegations equivalent thereto) fails to state a cause of suit and is fatally defective. It is now hornbook law in this state that such an objection to a complaint is never waived and may even be raised for the first time in this court.

In paragraph IV of the complaint, supra, it is alleged that the labor was performed and the materials furnished between September 7, 1949, and March 8, 1950, but that is a far cry from alleging that 'the contract was completed' or that 'the contract was fully performed' on March 8, 1950, or, if not completed, that plaintiffs had just cause for not completing it.

In Bernard v. Hassan, 60 Or. 62, 65, 118 P. 201, a suit to foreclose a mechanic's lien, Mr. Justice McBride, speaking for the court, said:

'* * * An original contractor, within the meaning of the mechanic's lien law, is one who furnishes labor, or labor and materials, upon a contract direct with the owner. Boisot on Mech. Liens, § 220. The contract need not be express, but may be implied. The complaint in this case states substantially a contract to alter and repair a dwelling house, and to perform and furnish the labor to so alter and repair it. So far it states an original contract with the owner to do a particular thing, but it fails to state that the contract was completed, or to give any reason why it was not completed, or to state the date of the completion of the building.

'* * * Section 7420 [§ 67-105, O.C.L.A.] makes it a prerequisite of a valid, original contractor's lien that it shall be filed within 60 days after the completion of the contract, and a complaint which does not show this fact does not state a cause of suit.' (Italics ours.)

In Christman v. Salway, 103 Or. 666, 205 P. 541, 547, the contention was made that the lien notice was invalid because it did not show on its face that it was filed within 60 days after completion of the claimant's contract with the owner. The court held that § 10195, Or.Laws, § 67-105, O.C.L.A., did not require that the lien notice contain a statement that it was filed within 60 days after the completion of the claimant's contract, stating that 'a claimant is not required to state in his claim of lien filed anything not required to be stated therein' by the statute. The court then said, at page 684 of 103 Or., at page 547 of 205 P.:

'In his foreclosure proceedings he must allege and prove every fact essential to the existence of a valid lien. He must therefore allege in his complaint and prove that he filed his claim within the time allowed (Coffey v. Smith, supra), and 'it must affirmatively appear from the complaint that the notice filed contained all the essential provisions required by statute; that it was proper in form, verified as required, and filed within the time prescribed' (Pilz v. Killingsworth, 20 Or. 432, 437, 26 P. 305, 306). Christman neither alleged in his complaint, nor proved, that the claim of lien was filed within 60 days after the completion of his contract with the owner, and the item of $20 claimed therefor must therefore be denied. Coffey v. Smith, supra.'

In Coffey v. Smith, 52 Or. 538, 540, 97 P. 1079, 1080, it is stated:

'The right to assert and perfect a mechanic's lien is a...

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