Boise-Payette Lumber Co. v. Dominican Sisters of Ontario

• Decision Date: 13 December 1921
• Parties: BOISE-PAYETTE LUMBER CO. v. DOMINICAN SISTERS OF ONTARIO et al.
• Court: Oregon Supreme Court

202 P. 554

102 Or. 314

BOISE-PAYETTE LUMBER CO. v. DOMINICAN SISTERS OF ONTARIO et al.

Supreme Court of Oregon, En Banc.

December 13, 1921

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Suit by the Boise-Payette Lumber Company against the Dominican Sisters of Ontario and others. Decree for plaintiff, and named defendant appeals. Decree reversed, and suit dismissed.

The object of this suit is the foreclosure of a lien by the plaintiff upon the property of the defendant. Plaintiff Boise-Payette Lumber Company, a private corporation extensively engaged in the manufacture and sale of lumber conducts a yard at Ontario, Or., for the sale of lumber and other building material. The Dominican Sisters, a corporation, defendant herein, conducts a hospital in the city of Ontario, Or.

Between the 4th day of February and the 13th day of June, 1918, the plaintiff, at the instance of one William Kercher, delivered upon the premises of the Dominican Sisters of Ontario certain building material which was used by Kercher, the contractor in charge, in the construction, for the defendant of a building called "St. Joseph's Home for Old People."

The testimony of the parties thereto shows that the contract made between the defendant the Dominican Sisters and William Kercher for the construction of the building was both oral and written. The writings are as follows:

"Ontario Oregon.

"This agreement made and entered into this 14th day of March 1918, by and between the Dominican Sisters and William Kercher for the construction of St. Joseph's Home, to be built in Villa Park addition to the hospital, the said house to be built in a good and workmanlike manner according to plans and specifications. For doing above work the Dominican Sisters do agree to pay to William Kercher the sum of $2,800.00. The building will be finished May 15th and the last payment of $500.00 will be paid on that date. [Signatures.]"

Accompanying the above writing is a paper entitled, "Specifications and Contract for the Erection of St. Joseph's Home," which relates to the excavation, foundation, studdings porches, walls, roof, stairway, inside trimmings, doors and windows, plaster, and electric wiring. Then follows this language:

"All above-mentioned work to be done first-class for the sum of $2,500.00."

Next comes an enumeration of matters denominated "extras, $300." Indorsed on the contract are the words, "All complete for $2,800." These writings were executed several weeks after the beginning of the furnishing of the material and the work of construction.

The testimony offered by the defendant is to the effect that Kercher agreed to construct the building and furnish all material other than heating and plumbing for the sum of $2,800, while Kercher claims that he was to receive $2,800 for the construction of the building, and that the defendant was to furnish not only the heating and plumbing, but also the lumber. The testimony was taken not before the court, but by a stenographer at Ontario, Malheur county, Or., and thereafter transcribed, and the proof submitted to the court in which the cause was pending.

The court made findings of fact and conclusions of law, and, based thereon, decreed the foreclosure of plaintiff's lien. Defendant appeals, assigning error as follows:

"In making findings Nos. 3, 4, 5, 6, 7, 9, 11, 12, and that the court committed error in finding conclusions No. 1, 2, 3, 4, 5, and in rendering any judgment or decree for plaintiff."

P.J. Gallagher, of Ontario (W.H. Brooke, of Ontario, on the brief), for appellant.

Alfred A. Fraser, of Boise, Idaho (Wm. E. Lees, of Ontario, on the brief), for respondent.

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

At the beginning we shall observe that we are not deciding whether the defendant is liable to plaintiff in an action at law for the building material furnished by plaintiff and used in the construction of St. Joseph's Home for Old People. The matter before us for consideration involves the single question of plaintiff's right to a statutory lien provided for by section 10191, Or.L., reading in part as follows:

"Every * * * lumber merchant * * * furnishing material * * * to be used in the construction * * * of any building * * * shall have a lien upon the same for the * * * material furnished at the instance of the owner of the building * * * or his agent; and every contractor, subcontractor, architect, builder or other person having charge of the construction * * * of any building * * * shall be held to be the agent of the owner for the purpose of this act; provided, that every person * * * or corporation furnishing material * * * to be used in the construction * * * of any building * * * shall not later than five days after the date of the first delivery, to any contractor or agent, of such material or supplies for which a lien may be claimed, deliver or mail to the owner * * * of the property * * * upon * * * which said material * * * is to be used, a notice in writing, stating in substance and effect that such person * * * has commenced to deliver material * * * for use thereon, with the name of the contractor or agent or other person ordering the same, and that a lien may be claimed for all material * * * furnished by such person * * * for use thereon. * * * No materialman's lien for material * * * furnished to the contractor or the agent of any owner * * * shall be enforced unless the above provisions of this act have been complied with."

The last sentence in the section quoted emphatically declares that no lien for material shall be enforced unless its provisions have been complied with. Hence no claim for material furnished at the instance of the contractor in charge is enforceable by lien, unless a notice which complies with the commands contained in this section has been served upon, or mailed to, the owner. The right to assert and perfect a mechanic's lien is a statutory privilege. Brown v. Harper, 4 Or. 89. This privilege may be exercised or waived, as the lienor may prefer. Hughes v. Lansing, 34 Or. 118, 55 P. 95, 75 Am.St.Rep. 574. The right to a lien being purely of statutory creation, whatever the statute makes necessary to its existence must be done, and one claiming the benefit of that statute must bring himself clearly within its terms. Gordon v. Deal, 23 Or. 153, 31 P. 287; Curtis v. Sestanovich, 26 Or. 107, 119, 37 P. 67. We quote with approval from the case of Pilz v. Killingsworth et al., 20 Or. 432, 435, 26 P. 305, 306, wherein this court said:

"The right to a lien is in derogation of the common law, and can only be established by a clear compliance with the requirements of the statute. The right is conferred by statute, and the party claiming such lien must show a substantial compliance with the statute. * * * Allen v. Rowe, 19 Or. 188 ; Kneel. Mech. Liens, 221."

That provision of the Code enacted for the protection of materialmen was amended by chapter 185, General Laws of Oregon 1915, for the express purpose of affording protection to the owners of property against willful or careless contractors. The statute yet preserves the materialman's right to a lien, but, under conditions as they exist in the instant case, imposes upon him the duty of notifying the owner of the real property subject to a lien of the material furnished the contractor in charge to be used in the construction of any building erected thereon.

In Auld v. Starbard, 89 Or. 284, 173 P. 664, this court, speaking through Mr. Justice Moore, said:

"Chapter 185, Gen.Laws Or. 1915 [section 10191, Or.L.], was evidently patterned after an act of the Legislative Assembly of the state of Washington. * * * Where a statute, after having been construed by the court of last resort in the state where the law was enacted, is adopted in Oregon, the interpretation thus given, though not binding upon the courts of this state, affords persuasive argument that it should be followed here."

In Finlay et al. v. Tagholm et al., 60 Wash. 539, 541, 111 P. 782, 783, Mr. Justice Chadwick, speaking for the court, said:

"It is contended that the statute should be construed not strictly, but liberally, in order to secure liens for materialmen and laborers. * * * The answer to this argument is that the statute requires no construction. Its terms are plain and its object evident. The law is that a duplicate statement shall be delivered or mailed to the owner * * * at the time the material is delivered to the contractor; * * * its purpose being, not so much to insure a right of lien, as to protect property owners against dishonest contractors."

According to the testimony of William Kercher, he was the contractor in charge of the construction of the building in which the material furnished by plaintiff was used. The testimony offered by the defendant shows that Kercher was the contractor in charge of the construction of that building. The letter addressed by Chance, the agent of the Boise-Payette Lumber Company, treats Kercher as the contractor in charge. He being the contractor in charge of the construction of St. Joseph's Home for Old People, and having procured, at his own instance, the material to be delivered for its construction, there can be no doubt that plaintiff was bound to serve a notice upon the defendant, as required by the statute under which it claims a remedy. The notice required to be served should be in writing, stating in substance and effect that the plaintiff has commenced to deliver material for use in the building under construction, with the name of the contractor or agent or other person ordering the same, and that a lien may be claimed for all material furnished by the plaintiff for use thereon.

The plaintiff, having failed to comply with the statutory...