Bartels v. McCullough

• Decision Date: 15 November 1921
• Citation: 102 Or. 66,201 P. 733
• Parties: BARTELS v. MCCULLOUGH ET AL.
• Court: Oregon Supreme Court

201 P. 733

102 Or. 66

BARTELS v. MCCULLOUGH ET AL.

Supreme Court of Oregon

November 15, 1921

In Banc.

Appeal from Circuit Court, Linn County; George G. Bingham, Judge.

Suit by F. J. Bartels against T. A. McCullough, John M. Williams, and another, to foreclose mechanics' liens. Decree for plaintiff, and defendant Williams appeals. Modified.

This is a suit to foreclose certain mechanics' liens upon a group of mining claims in Lane county. The plaintiff claims a lien on his own behalf for $405.70, one as assignee of E. O Pooler for $253.69, and another, for $445.76 as assignee of Lester Powers. All of the notices assert the respective liens on account of work and labor performed in the mines and in search of precious metals in said mines, or in mining and milling ores. The work was performed in pursuance of a contract with McCullough and Atkinson, who were in charge of said mines and were the reputed owners thereof. In particular it may be observed that the lien notice of the plaintiff claimed that he did work as follows:

"That I did and performed general work in and upon the tunnel and in the mill and about the mill and did assaying on said Great Northern claim. That I was employed to do such work by T. A. McCullough aforesaid, representing himself as one of the owners and agent for the owners of said premises and property, representing himself as the general manager and superintendent. That I performed 8 days' work in the month of June, 1917, at the agreed wage and price of $3 per day. That I worked 30 days in July, 19 days in August, 25 days in September, and 27 days in October, 1917, at the agreed price and wage of $3.25 per day. That I worked 30 days in November, and 28 days in December, 1917, and 28 days in January, 1918, and 10 days in February, 1918, at the agreed wage and price of $4 per day. Said work comprising 205 days, aggregating the sum of $736.25.

"It was also agreed and understood that I should pay $1 per day for board and lodging, to be charged against my wages, and that I should pay the further sum of 1 cent per day for state industrial accident fund, $2.05. That I commenced work in the month of June, 1917, as aforesaid, and did and performed work as herein stated to and including the 10th day of February, 1918, under the instructions and by the authority of said T. A. McCullough, and that 60 days have not elapsed since I ceased to do and perform such labor and work. That no part of said sum of $736.25 has ever been paid, excepting the following charged against my account to wit:

                            Board 
                          
                            $205 00
                          
                            State industrial accident [fund] 
                          
                            2 05
                          
                            Cash paid in June, 1917 
                          
                            16 00
                          
                            Cash paid in July, 1917 .............
                          
                            67 50
                          
                            Cash paid in August, 1917 ...........
                          
                            40 00
                          
                            
                          
                            _______
                          
                            Total ..........................
                          
                            $330 55
                          
                

"That there is now due, owing, and unpaid from said George Atkinson and T. A. McCullough to me the said sum of $405.70, and there are no just credits or offsets against the same."

The other notices are similar, except that the labor of assaying is not mentioned and different credits are given according to the nature of the circumstances. The notices of lien were filed April 9, 1918. The assignments of Pooler and Powers to the plaintiff were dated August 10, and August 12, 1918, respectively.

Williams as trustee was the legal owner of the mines, and McCullough and Atkinson were in charge and working them under an option to purchase, when the work was performed and the liens filed. McCullough and Atkinson made default and Williams answered, setting up his ownership and denying generally the allegations of the complaint. Upon the trial there was a decree for the plaintiff, and the defendant Williams appeals.

Williams & Bean, of Eugene, for appellant.

J. S. Medley, of Eugene, for respondent.

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

The notices of lien are regular in form and upon adequate testimony are sufficient to support the decree. On the trial, plaintiff testified positively to his account, except that he stated that his wages for November and December, 1917, were $3.25 per day instead of $4, practically admitting an error in the lien notice of $43. This discrepancy was never called to his attention, and it is now claimed that his notice is not a true statement and is void, and that for this reason he should not recover anything.

There is abundant authority in this state and elsewhere for the proposition that, where the claimant has intentionally or through culpable negligence overstated the amount due him, such overstatement will render the whole lien void. Nicolai v. Van Fridagh, 23 Or. 149, 31 P. 288; Lewis v. Beeman, 46 Or. 311, 80 P. 417; Equitable Savings & Loan Ass'n v. Hewitt, 55 Or. 329, 106 P. 447. This rule is of particular application in cases where the work is done at the instance of a contractor or other person only constructively, or as a matter of statute the agent of the owner; the reason being that in such cases the owner has no opportunity to know the length of time the claimant worked, the wages agreed upon, and the payments made, and is not in a position to controvert exorbitant claims of which he has no notice, and that the intentional or negligent overstatement of a claim is at least a constructive fraud as to him.

But it does not follow that a mere mistake in an item of a claim necessarily renders the whole lien void, when it is evident that no fraud is intended and where it has not misled the defendant owner to his prejudice in making his defense. See Rowland v. Harmon, 24 Or. 529, 34 P. 357; Lumber Co. v. Washburn, 29 Or. 150, 170, 44 P. 390; Allen v. Elwert, 29 Or. 428, 433, 44 P. 824; Cooper Manufacturing Co. v. Delahunt, 36 Or. 402, 407, 51 P. 649, 60 P. 1; Mason v. Germaine, 1 Mont. 263; Black v. Appolonio, 1 Mont. 342; Palmer v. McGinness, 127 Iowa, 118, 102 N.W. 802; Fairbairn v. Moody, 116 Mich. 61, 74 N.W. 386, 75 N.W. 469; Hulburt v. Just, 126 Mich. 337, 85 N.W. 872; Kendall v. Fader, 99 Ill. App. 104; Marston v. Kenyon, 44 Conn. 349. All the above cases were decided upon statutes similar to ours. In many of the states, Massachusetts and California, for instance, it has been provided by statute that an unintentional misstatement of the amount of a claim should not render the claim void, and these statutes make decisions from such states inapplicable here. Decisions from several states take the opposite view, notably the earlier cases in Massachusetts, but liens in that state were then enforced at law and not in equity, which accounts, perhaps, for the extremely technical holding of the courts of that state, finally corrected by legislation. The cases last above cited seem in accordance with the true spirit of equity, and as such appeal to our judgment.

To apply them to the case at bar, it may be said that there is not the slightest indication that the claimant Bartels had any fraudulent intent to swell his claim beyond what was justly due him. The account was a long one, consisting of many items, and he was the only witness called on either side of the case. Had his intention been to claim fraudulently $43 more than was due him, he had only to make his testimony square with his statement in the notice of lien, and it is due to his testimony that Williams discovered that the notice stated a greater sum than was actually due. The discrepancy was not called to his attention on the trial, and was probably then unnoticed...