Barr v. World Keepfresh Co.

• Decision Date: 20 July 1915
• Citation: 150 P. 747,77 Or. 95
• Parties: BARR v. WORLD KEEPFRESH CO.
• Court: Oregon Supreme Court

150 P. 747

77 Or. 95

BARR v. WORLD KEEPFRESH CO.

Supreme Court of Oregon

July 20, 1915

Department 2.

Appeal from Circuit Court, Washington County; J. U. Campbell, Judge.

Suit by Theo. M. Barr against the World Keepfresh Company. Decree for defendant, and plaintiff appeals. Reversed and rendered.

This is a suit to foreclose a mechanic's lien on lots 5 and 6 block 8, Fair View addition to the city of Hillsboro Washington county, Or., together with the structure erected thereon. The lien was filed by the plaintiff September 26 1912, for services rendered and materials furnished by him to the defendant in the construction of a dryer, between August 8 and September 11, 1912, as stated in the notice of lien and in the complaint. The claim amounted to $2,087.37, no part of which has been paid. Plaintiff asked to be allowed $225 attorney's fees. The defendant's answer consists of a general denial of the allegations of the complaint, a portion of which is based upon information and belief. Upon the trial evidence was introduced showing that about the month of May 1912, the plaintiff agreed orally with the defendant to construct a drying plant, in the warehouse or dryer of the defendant company, for what the labor and material would be reasonably worth. The plant consisted of two units or furnaces with the attachments, each furnace having 10 apartments or trays for drying fruits and vegetables connected therewith. The plaintiff proceeded to get out the materials to be used in both units. At first only one unit was erected, as the company desired to observe its operation before building the second, and to make such alterations as would be shown to be necessary. Thereafter plaintiff constructed the two units and finished the same in September. The furnaces were built upon a cement floor, and constructed of brick, laid in mortar. The notice of lien contained a lumping charge, consisting of a single item, as follows:

The World Keepfresh Company, a Corporation, In Account with Theo. M. Barr, Dr.

To materials furnished and labor performed in the construction of a

fruit dryer or warehouse .......................................... $2,087.37

The trial court rendered a decree in favor of the defendant for the reason that the amount, $2,087.37, as claimed in the lien notice, comprised nonlienable items. The plaintiff appeals.

W. T. Slater and Chas. E. Lenon, both of Portland (Jeffrey & Lenon, of Portland, on the brief), for appellant. E. E. Heckbert, of Portland, for respondent.

BEAN, J. (after stating the facts as above).

It is the position of defendant:

"That no lien was created in favor of the plaintiff under the lien notice filed by him, the claimant having mingled therein lienable and nonlienable items in a lumping charge, there being no means of ascertaining from the notice itself the amount of nonlienable items, or of segregating the same from the lienable items."

Where the lien notice contains merely a lumping charge of the amount demanded, consisting of both lienable and nonlienable items, and there is no means of ascertaining the latter from the lien notice itself, it has often been held that no lien is acquired, and the court cannot, from oral testimony, separate the items for which a lien is given from those for which no lien can be acquired. Harrisburg Lbr. Co. v. Washburn, 29 Or. 150, 164, 44 P. 390; Allen v. Elwert, 29 Or. 428, 444, 44 P. 823, 48 P. 54; 2 Jones on Liens, § 1419; Hughes v. Lansing, 34 Or. 118, 124, 55 P. 95, 75 Am. St. Rep. 574; Portland Hardwood Floor Co. v. Logging Co., 64 Or. 316, 319, 130 P. 52; Stewart v. Spalding, 71 Or. 310, 141 P. 1127. Counsel for plaintiff submitted that the items of board and expenses were a part of the compensation for the labor and materials going to make up the reasonable cost and value thereof and were not, strictly speaking, items for which a lien is claimed. No nonlienable item appears upon the face of the notice; hence it becomes important to determine whether or not the proof shows that nonlienable items were contained in the amount claimed.

The controversy is in regard to a memorandum of board and expenses amounting to about $90 contained in a statement of account referred to by plaintiff while testifying, and filed as an exhibit without objection. It will be noticed from the statement of the case that the claim sued for is the reasonable compensation for both materials furnished and labor performed in the construction of the plant. Upon this question Mr. Barr, the plaintiff, testified to the effect that the statement contained the value of all the labor and materials in the construction of the dryer, and mentioned the main items of sheet iron, brick, and lumber, etc.; that the material and labor amounted in full to $2,087.37. His evidence was not objected to, and was not attempted to be shaken on cross-examination. Another witness, Charles F Gable, superintendent for the defendant in the construction of the plant, stated that one of the units would cost $1,000, or two,...