Barr v. Lynch

• Decision Date: 12 December 1939
• Citation: 163 Or. 607,97 P.2d 185
• Parties: BARR <I>v.</I> LYNCH ET AL.
• Court: Oregon Supreme Court

163 Or. 607

97 P.2d 185

BARR

v.LYNCH ET AL.

Supreme Court of Oregon.

Argued October 11, 1939.

Modified December 12, 1939.

Rehearing denied February 14, 1940.

Mechanics' liens — Original contractor

1. An "original contractor" within meaning of mechanics' lien law is one who furnishes labor, or materials and labor, on a contract direct with the owner.

Mechanics' liens — Owner

2. A person purchasing property under contract of sale and in possession thereof when plaintiff was engaged to and did furnish materials and perform labor on premises was an "owner" within mechanics' lien law, and purchaser's interest in property was subject to mechanic's lien.

Mechanics' lien — Original contractor

3. A person who performed labor and furnished materials at direction of agent of purchaser of premises under contract of sale would be assumed to be an "original contractor" so far as purchaser was concerned, and such person could recover personally from purchaser and could claim lien against purchaser's interest in property without notifying purchaser when such person began to furnish the materials.

Mechanics' liens — Reasonable value

4. A person performing labor and furnishing materials at direction of agent of purchaser of premises under contract of sale and without direct dealings with vendor could not recover personally from vendor for materials and labor and could not assert lien against vendor's interest in property for more than reasonable value, as distinguished from contract price, of labor and materials.

Mechanics' liens — Notice — Interest in property

5. A person must notify vendor of property being sold on contract within five days from the time that such person first began to deliver materials in order to subject vendor's interest in property to lien for materials furnished at direction of agent of purchaser, even though vendor may have failed to post notice of non-responsibility.

Mechanics' liens — Notice

6. A person performing labor and furnishing materials at direction of agent of purchaser of premises under contract of sale was not a "contractor" so far as vendor's interest in property was concerned, and therefore such person was required to give vendor notice within five days after starting to deliver materials in order

to acquire a right of lien against property for contract price of materials so furnished.

Mechanics' liens — Original contractor

7. A person performing labor and furnishing materials at direction of agent of purchaser of premises under contract of sale was not an "original contractor" so far as vendor's interest in property was concerned, and hence such person had right of lien against vendor's interest for reasonable value of labor performed, if notice was given vendor within 30 days after completion of improvement upon which labor was performed, even though such person was not entitled to lien for materials for failure to give vendor notice within five days after starting to deliver materials.

Mechanics' liens — Notice of lien

8. A person who was not an original contractor so far as owner was concerned, and who performed labor on premises, was required to file notice of lien for reasonable value of labor within 30 days after completion of improvements on which labor was performed.

Mechanics' liens — Original contractor

9. Under mechanics' lien law, a person furnishing materials or performing labor, or doing both, at instance of statutory agent of owner of property cannot hold relationship of "original contractor" as to the owner.

Mechanics' liens — Claim of lien

10. A person who was not an original contractor so far as owner was concerned, and who performed labor on premises, had within 30 days after permanent abandonment of construction to file a claim of lien for labor performed by such person.

Time — Notice of lien

11. Where alterations and repairs were abandoned on October 29, 1937, the thirtieth day within which person who was not an original contractor so far as owner was concerned, and who performed labor on premises, must file notice of lien for reasonable value of labor, was November 28, 1937, which fell on Sunday, so that such person had the following day in which to file notice.

Mechanics' liens — Notice of non-responsibility

12. The interest of owner not posting notice of non-responsibility within three days after obtaining knowledge of alteration and repair of premises was subject to lien for labor performed on building, notwithstanding that owner subsequently posted notice of non-responsibility prior to filing of notice of claim of lien.

Appeal and error — Substitution of parties

13. An appeal from decree in suit to foreclose mechanics' lien, instituted prior to conveyance of property by defendant, could be

prosecuted in defendant's name by grantee, and no substitution of parties would be required.

  Scope and import of term "owner" in mechanic's lien statute
                note, 95 A.L.R. 1095
                  40 C.J. Mechanic's liens, § 110
                

Department 2.

Appeal from Circuit Court, Marion County.

L.G. LEWELLING, Judge.

Suit by Theodore M. Barr against Alice Lynch, unmarried, and others, and Audrey Ewing, unmarried, to establish and foreclose a purported mechanic's lien against the property owned by Audrey Ewing.From a decree in favor of the plaintiff, Audrey Ewing appeals.

MODIFIED.REHEARING DENIED.

William H. Trindle, of Salem, for appellant.

Carl T. Pope and Percy A. Cupper, both of Salem, for respondent.

BAILEY, J.

The plaintiff, Theo.M. Barr, instituted this suit against Audrey Ewing and other defendants, to establish and foreclose a purported mechanic's lien against real property in Salem, Oregon, of which Mrs. Ewing was the owner in fee simple.From a decree in favor of the plaintiff, Mrs. Ewing appeals.

On February 20, 1937, Audrey Ewing entered into a contract to sell to Alice Lynch the above mentioned tract of land, on which there was a dwelling house, for the sum of $3,500, of which amount $1,000 was paid upon execution of the contract, and the balance of the purchase price was to be paid in monthly installments.Immediately after the execution of the contract Alice Lynch went into possession of the property and began to alter and repair the building thereon, for the purpose of converting it into an apartment house.

The down payment of $1,000 was made by J.C. Thompson for and on behalf of Alice Lynch.He as agent of Alice Lynch had charge of the construction work and ordered the labor performed and the materials furnished for the alteration and repair of the building.

The owner of the land in fee, the vendor, Audrey Ewing, did not personally have anything to do with the alteration or repair of the house, and had no dealings with the lien claimant.There was nothing contained in the contract between the vendor and the vendee requiring the latter to make any repair or alteration of the house.

The vendee defaulted in the payment of monthly installments on the contract and a suit was instituted by the vendor for strict foreclosure, which resulted in the entry of a decree on October 29, 1937, barring and foreclosing all the right, title and interest of the vendee in the premises.

The respondent, Theo.M. Barr, began on or about April 22, 1937, to furnish materials and perform labor in altering and installing plumbing in the dwelling house on the property here involved, at the instance of J.C. Thompson.The last date of his furnishing materials and performing labor was June 5, 1937.On November 29, 1937, Mr. Barr filed his notice of claim of lien.In that notice it is set forth that the materials were furnished and the labor performed "by virtue of a contract made with Alice Lynch by and through her agent, Juell C. Thompson, hereinafter designated as the builder".Attached to this notice of claim of lien is an itemized statement setting out what the lien claimant asserts is the contract price and reasonable value of the materials he furnished and the labor he performed.The total contract price and reasonable value is stated as $394.75, of which amount $76 is for labor performed.

Mr. Barr did not within five days after commencing to furnish materials and supplies, or at any time, give Mrs. Ewing statutory notice that he had commenced to deliver the same and that a lien therefor might be claimed by him.

Section 51-101,Oregon Code 1930, grants to "every mechanic, artisan, machinist, builder, contractor, lumber merchant, laborer * * * and other person performing labor upon or furnishing material * * * to be used in the construction, alteration or repair, either in whole or in any part of any building," a lien upon such building for the work or labor done or material furnished "at the instance of the owner of the building or other improvement, or his agent".This section defines as the agent of the owner for the purposes of the act"every contractor, sub-contractor, 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 a condition, however, to the right to a lien, any person, firm or corporation furnishing materials or supplies "to any contractor or agent" is required, within five days after the date of the first delivery of such materials or supplies, to deliver or mail to the owner or reputed owner of the property a notice in writing, stating in substance that the person, firm or corporation has commenced delivery of materials and supplies for use thereon, setting forth the name of the contractor or agent or other person ordering the same, and stating that a lien may be claimed for all materials and supplies so furnished.

Section 51-104,Oregon Code 1930, provides that every building or other improvement mentioned in § 51-101, supra, with certain exceptions, constructed upon any land with the knowledge of the owner or person having or claiming any interest therein shall be held to have been constructed at the instance of such owner or person...