Bohn v. Wilson

• Citation: 101 P. 202,53 Or. 490
• Parties: BOHN v. WILSON et al.
• Decision Date: 27 April 1909
• Court: Supreme Court of Oregon

101 P. 202

53 Or. 490

BOHN v. WILSON et al.

Supreme Court of Oregon

April 27, 1909

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by W.G. Bohn, doing business as the Mt. Scott Lumber Company against W.E. Wilson and another. Judgment for plaintiff, and defendants appeal. Affirmed.

This is a suit to foreclose a mechanic's lien. The substantial averments of the complaint are that defendant Wilson is the owner of certain described real estate in Portland; that about the 1st of November, 1906, he entered into a contract with T.S. Lee, by the terms of which Lee undertook to furnish the necessary materials and construct for him two dwelling houses on such property; that between the 5th of November 1906, and the 12th of December, 1906, plaintiff sold and delivered to Lee building materials, to be used, and which were used, by him in the construction of such dwelling houses for defendant Wilson, of the reasonable value of $858.44 that Lee subsequently abandoned his contract, and thereafter between the 13th day of December, 1906, and the 20th day of the same month, plaintiff sold and delivered to Wilson building materials, which were used by him in the completion of the two dwelling houses referred to, of the reasonable value of $161.13; that no part of the materials furnished to Lee and Wilson has been paid, except the sum of $869.57, and there is now due and owing thereon the sum of $150, over and above all legal claims and offsets; that on about the 19th of January, 1907, and within 30 days after plaintiff had ceased to furnish the materials, he filed in the office of the county clerk of Multnomah county "his certain verified claim," showing that defendant Lee was the agent and contractor of defendant Wilson for the construction of two dwelling houses upon the land described in the complaint; that plaintiff sold and delivered to Wilson, through Lee, goods, wares, and merchandise, and building materials of the reasonable value of $858.44, to be used by Lee in the construction of such houses, which materials were delivered upon the premises between the 5th of November and the 12th of December, 1906; that after such materials were furnished to Lee, he abandoned his contract, and thereafter, between the 13th day of December and the 30th of December, plaintiff sold and delivered to Wilson building materials, which were used by him in the construction of the dwelling houses and to complete the same, of the reasonable value of $161.13; that such verified claim contains a correct statement of the account and demand against defendant for materials so furnished, after deducting all just claims and offsets, and a description of the property to be charged with the lien therefor; and that Wilson was the owner, or the reputed owner, of the same. A demurrer to the complaint, because it did not state facts sufficient to constitute a cause, was overruled, and defendant answered, denying the averments concerning the nature and character of the lien notice filed, and pleading payment for all materials furnished or used in the buildings. The cause was tried on the testimony, and a decree rendered in favor of plaintiff, from which defendant Wilson appeals.

Oglesby Young and A.T. Lewis, for appellant.

J.F. Boothe, for respondent.

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

It is argued that the complaint does not state a cause of suit because it does not show that the lien claim as filed by plaintiff was verified by "the oath of himself or of some other person having knowledge of the facts," as required by section 5644, B. & C. Comp., or that Wilson was the owner, or reputed owner, of the...