Chamberlin v. Hibbard
| Citation | 38 P. 437,26 Or. 428 |
| Parties | CHAMBERLIN v. HIBBARD. |
| Decision Date | 17 December 1894 |
| Court | Supreme Court of Oregon |
Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.
Action by H.C. Chamberlin against George L. Hibbard to enforce a mechanic's lien. From a judgment for plaintiff, requiring him, though, to pay half the costs, both appeal. Modified.
F.L. Keenan, for plaintiff.
G.G Gammans, for defendant.
This is a suit to foreclose a mechanic's lien upon lot No. 1, of block No. 50, in Couch's addition to the city of Portland, Or. The facts show: That the plaintiff, on March 14, 1892, entered into a contract with the defendant, by the terms of which he agreed to furnish the materials, construct the basement, and erect, according to certain plans and specifications, the walls, of a four-story brick building upon said lot, and plaster the rooms therein for the defendant, in consideration of $4,265, to be paid by installments as the work progressed. That the said contract was modified four days after its execution, and the plaintiff, in consideration of $250, further agreed to substitute stone for brick in building said basement, and also to cement the rear wall of said building. That on the 22d day of the following month said contract was again modified, and the plaintiff, in consideration of $1,175 agreed to add 10 feet to the height of of the brick walls for another story, and also to substitute pressed for common brick on the sides of said building fronting upon Seventh and Everett streets. That the plaintiff, on September 27, 1892 claiming to have fully performed his said contract, filed his claim of lien to secure the reasonable value of alleged extra work upon said building as follows: To two belt courses, $50; to enlarging said building four inches, $50; to one foot added to the fourth story, $100; to three pressed-brick chimneys, $75; to four chimneys changed from common to pressed brick, $28; to cleaning the walls of said building, $50; to two fire walls, $300,--and, having given the defendant credit for $150.75 overpaid on the original contract, claimed $502.25 as the amount of his lien, and commenced this suit for its foreclosure. The defendant denied that the plaintiff had done any extra work on said building, and alleged that he was entitled to $2,480.70 for credits omitted, damages sustained by reason of defective material and workmanship, and delay in completing the building. The reply having denied the allegations of new matter contained in the answer, the cause was referred to Sanderson Reed, Esq., who took the evidence, and, having found for the defendant, the court set aside said finding, and, after allowing the defendant $1 as damages for defective plastering, rendered a decree foreclosing said lien, and awarding plaintiff $501.25, the further sum of $10 as attorney's fees, and requiring each party to pay one-half of the costs of the suit, from the whole of which decree the defendant appeals, and the plaintiff appeals from the part thereof which allows him only $10 as attorney's fees, and requires him to pay one-half the costs.
The plaintiff, in his claim of lien, gives an itemized statement of the several amounts due under the original contract, and the amounts claimed to be due for the alleged extra work, and also the payments made thereon, except one of $200, and, by deducting the sum of the credits from the sum of the charges, $702.25 is found to be due; but in his claim he demands only $502.25, and from said omission it is contended that the lien is invalid because it fails to contain a true statement of the plaintiff's demand, after deducting all just credits and offsets, as required by the statute. Hill's Code, § 3673. It is not necessary that the claim filed with the county clerk should contain an itemized account of the demand. Ainslie v. Kohn, 16 Or. 363, 19 P. 97; Curtis v. Sestanovich (Or.) 37 P. 67. When the amount demanded is correctly stated in the claim of lien, the items thereof become superfluous, and an error or omission therein ought not to vitiate the lien. The claim depends for its validity, among other things, upon a true statement of the demand; and had the plaintiff claimed $502.25 as the amount due him after deducting all just credits and offsets, without having given the items of the account, it is conceded that his notice of lien would have been invulnerable to attack. He has stated that this sum is so due him, and such general statement of his demand, showing that all just credits had in fact been given, his lien ought not to be defeated because in copying the items of his account he has inadvertently omitted a charge or credit to which either party might have been entitled.
The original contract provided that the defendant might make such alterations in the plans or specifications as he desired, and it was agreed that, if any dispute arose respecting the...
To continue reading
Request your trial