Ban v. Columbia Southern Ry. Co.

• Court: U.S. Court of Appeals — Ninth Circuit
• Citation: Ban v. Columbia Southern Ry. Co., 117 F. 21 (9th Cir. 1902)
• Decision Date: 05 May 1902
• Docket Number: 752.
• Parties: BAN v. COLUMBIA SOUTHERN RY. CO. et al.

117 F. 21

BAN v. COLUMBIA SOUTHERN RY. CO. et al.

No. 752.

United States Court of Appeals, Ninth Circuit.

May 5, 1902

A. C Emmons and Williams, Wood & Linthicum, for appellant.

Snow &amp McCamant, for appellees.

The portions of the amended bill of complaint, referred to in the opinion of the court, are substantially as follows:

'That the defendant the Columbia Southern Railway Company now is, and at all times hereinafter mentioned was, a private corporation, incorporated and existing under and by virtue of the laws of the state of Oregon; that the defendant the New York Security & Trust Company now is, and at all times hereinafter mentioned was, a private corporation, incorporated and existing under and by virtue of the laws of the state of New York; that complainant now is, and at all times hereinafter mentioned was, a citizen of the empire of Japan and a subject of the emperor of said empire; that the amount in controversy between the complainant and defendants exceeds the sum of two thousand dollars ($2,000), exclusive of costs and interests; that the defendants the Columbia Southern Railway Company, A. E. Hammond, and Archie Mason, and each and all of them, are citizens of the state of Oregon; that the defendant the New York Security & Trust Company is a citizen of the state of New York,; that the defendant the Columbia Southern Railway Company is the owner of that certain piece or parcel of land, together with all appurtenances thereto and structures thereon, known as the right of way of said Columbia Southern Railway Company, and being in the counties of Wasco and Sherman, in the state of Oregon (the same being particularly designated, and described in the amended bill); that about the -- day of --, 1899, the Columbia Southern Railway Company entered into a contract with the defendant A. E. Hammond for the construction of an extension of its railway from the town of Moro to Shaniko, to be constructed and built on said right of way; that on the 11th day of October, 1899, the said A. E. Hammond entered into a contract with the defendant Archie Mason for the construction of all grading, bridging, culverts, ditches, change of creek channels, track-laying, surfacing, and such other work connected therewith; that thereafter, on the 30th day of October, 1899, the defendant Archie Mason sublet to the complainant and one N. G. Seaman the track-laying and surfacing of said railway; that the defendant A. E. Hammond has the original contractor in charge of the construction of said railway; that the defendant Archie Mason was a subcontractor under defendant Hammond, and as such was the agent of the defendant the Columbia Southern Railway Company for the construction of said portion of said railway; that about the -- day of --, 1899, the complainant and Seaman commenced to perform the work and labor provided for and required to be performed in and by the said contract, and continued to perform work and labor in the construction of said railway thereafter until or about the 10th day of July, 1900, at which time complainant and Seaman fully completed the work provided for and agreed to be done by them, and they then ceased to perform work and labor under said contract; that said complainant and said Seaman between the 30th day of October, 1899, and the 10th day of July, 1900, duly performed all the terms and conditions of the said contract between them and the said Archie Mason, and on said last-named date the work provided for by the terms of said contract was fully completed; that the agreed and reasonable price and value of the work and labor performed was and is the full sum of $32,365.86, of which said sum there had been paid in cash the sum of $7,000, leaving a balance of $25,365.86 due and owing from said defendant Archie Mason on account of work and labor performed in the construction of said railway; that after the completion of said contract as aforesaid, and within 30 days after said complainant and said Seaman ceased to perform work and labor in the construction of said road, and within 30 days after the completion of said railway, to wit, on the 8th day of August, 1900, said plaintiff and Seaman prepared and filed with the county clerk of Sherman county, in the state of Oregon, a claim containing a true statement of their account and demand against the said defendant Archie Mason, after deducting all just credits and offsets and alleging facts showing that the law as to the filing of such a lien had been fully complied with; that said complainant and said Sherman, in order to perform and complete the work specified in their said contract with said defendant Archie Mason, among other things did the following particular kind and amount of work (here follows a specification of the laying and surfacing of 46 miles of track and itemized accounts of the extra work done and the amounts due therefore); that although said complainant and said Seaman repeatedly requested said defendant Archie Mason and the chief engineer of said railway company to measure and estimate the work done by them as required by the terms of said contract as hereinabove specified, yet said defendant Mason and said chief engineer refused and neglected, and have ever since refused and neglected, so to do, and have wholly disregarded their duty in that regard; that said defendant Mason and said engineer still refuse and neglect to comply with the terms and provisions of said contract; that a reasonable time within which to make and determine the final estimate of the entire work done by said complainant and said Seaman under said contract has long since elapsed; that said refusal, neglect, and failure of said chief engineer and his assistants was fraudulent and in bad faith, and in willful violation of the terms and conditions of said contract, and was collusively contrived with said defendants; that defendant the New York Security & Trust Company has or claims to have some lien or incumbrance upon or interest in the property hereinabove described, but complainant alleges that such interest, if any, is subordinate and inferior to the claim and lien of this complainant; that prior to entering into said contract, a copy of which is attached hereto, marked 'Exhibit A,' for track-laying and surfacing of said railway, with said Archie Mason, said complainant and said Seaman entered into an agreement by the terms of which, among other things, it was mutually agreed and understood that the said complainant, S. Ban, should furnish all labor and advance all money required to perform the work provided for and contracted to be done under said contract, and in consideration thereof should receive and disburse all money belonging to said partnership, and, when said work should be finally completed and settled for, should render to said Seaman a statement of all money received and disbursed, and pay over to him one-half of the net profits of said work; that said defendant Mason had due notice and knowledge of said agreement at the time he entered into said contract with complainant and said Seaman; that there are and will be no profits arising from said work or contract, and there will be no profits or money to be turned over to said Seaman; that heretofore, and since the filing of said mechanic's lien, and prior to the commencement of this suit, the said N. G. Seaman for value relinquished and transferred to complainant all his right, title, and interest in and to said mechanic's lien, and in and to the claim and demand against said defendant Mason, on account of the work and labor performed under said contract, as hereinabove set forth, and this complainant ever since has been, and now is, the sole owner and holder of said mechanic's lien, and of said claim and demand against said Columbia Southern Railway Company, said A. E. Hammond, and said Archie Mason.'

Section 1 of the act of 1885, giving liens to mechanics, laborers, and others, reads as follows:

'Section 1. Every mechanic, artisan, machinist, builder, contractor, lumber merchant, laborer and other person performing labor upon or furnishing material of any kind to be used in the construction, alteration or repair, either in whole or part, of any building, wharf, bridge, ditch, flume, tunnel, fence, machinery, or aqueduct, or any other structure or superstructure, shall have a lien upon the same, for the work or labor done or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building, or other improvement, or his agent, and every contractor, subcontractor, architect, builder, or other person, having charge of the construction, alteration or repair, in whole or in part, of any building, or other improvement, as aforesaid, shall be held to be the agent of the owner for the purposes of this act. ' Laws Or. 1885, p. 13.

Section 1 of the act of 1889 reads as follows:

'Section 1. That any and all person or persons who shall hereafter as subcontractor, materialman or laborer furnish to any contractor to any railroad corporation any fuel, ties, materials, supplies or other article or thing, or who shall do or perform any work or labor for such contractor in conformity with any terms of any contract, express or implied, which said contractor may have made with any such railroad corporation, shall have a lien upon all property, real, personal and mixed, of said railroad corporation: provided, such subcontractor, materialman or laborer shall have complied with the provisions of this act. ' Laws 1889, p. 75.

The appellant's assignment of errors is as follows:

'(1) That the court erred in holding that the lien upon railroads given under the general mechanic's lien lau of the state of Oregon was repealed by implication by the act of the legislature of the ...