Christenson v. Behrens

• Decision Date: 20 June 1962
• Citation: 372 P.2d 494,231 Or. 458
• Parties: E. R. CHRISTENSON, d/b/a Christenson Electric Co., Respondent, v. Walter R. BEHRENS and Alice M. Behrens, husband and wife, Appellants, General Sheet Metal Works, Inc., an Oregon corporation, G. W. Paulson Co., an Oregon corporation, d/b/a Hollywood Floors, Respondents.
• Court: Oregon Supreme Court

Page 494

372 P.2d 494

231 Or. 458

E. R. CHRISTENSON, d/b/a Christenson Electric Co., Respondent, v. Walter R. BEHRENS and Alice M. Behrens, husband and wife, Appellants,

General Sheet Metal Works, Inc., an Oregon corporation, G.

W. Paulson Co., an Oregon corporation, d/b/a

Hollywood Floors, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted March 9, 1962.

Decided June 20, 1962.

Harlow F. Lenon, Portland, for appellants. On the brief were Lenon & Willner, Portland.

Joseph P. Stirling, Portland, for respondent Christenson.

Donald Paul Hodel, Portland, for respondent General Sheet Metal Works, Inc. On the brief were Hart, Rockwood, Davies, Biggs & Strayer and Michael Pertschuk, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY and GOODWIN, JJ.

ROSSMAN, Justice.

This is an appeal by Walter R. and Alice M. Behrens, two of the defendants, from a decree of the circuit court which sustained three lien claims against real property owned by those two defendants. One of the lien claims was alleged by the plaintiff who is in the electrical wiring business; another by the defendant, General Sheet Metal Works, Inc.; and the third by the defendant G. W. Paulson Co., a floor covering organization. The property is improved with a structure occupied by a mercantile establishment known as Walt's Super Market which the Behrens operate. In 1959 the Behrens entered into a contract with a corporate contractor, Fred W. Carter Co., for extensive alterations to the building. The Fred W. Carter Co., to which we will refer as the Carter Company, contracted with the plaintiff Christenson, who does business under the name of Christenson Electric Co., for the performance of the electrical work involved in the project; with the General Sheet Metal Works, Inc., for the sheet metal work; and with the defendant G. W. Paulson Co. for the covering of parts of the floor with asphaltic tile.

The subcontractors performed their undertakings fully, and the Behrens paid the Carter Company the entire contract sum. However, that company failed to pay the subcontractors, and about that time filed a petition in bankruptcy. In the meantime the three subcontractors filed their lien notices.

Thus, this is a case in which owners who paid their contractor in full for all work done upon their property are faced with lien claims based upon ORS 87.005-87.075 (mechanics' and materialmen's lien statutes) which seek to compel them to pay again for the work--this time to the subcontractors through the imposition of liens. We are aware of nothing in the form of equities which exerts a gravitational pull toward the position of any party and are satisfied that the issues must be resolved according to the bleak letter of the statute just cited.

When the plaintiff-respondent Christenson filed his suit to establish and foreclose his lien he made as defendants the Behrens and the other two subcontractors whom we have named. Each of those two subcontractors, by way of cross complaint, alleged its lien claim and prayed for foreclosure. The answer of the Behrens denied the validity of each of the liens. The circuit court sustained the validity of all the liens and decreed their foreclosure.

The appellants-defendants Behrens contend that the three claims were not timely filed and that the lien claim of plaintiff Christenson lumps into one unsegregated total the sums he charged for work performed upon personal as well as upon real property.

Each of the three lien claimants sent to the Carter Company in December 1959, or earlier, a statement of account as a final bill for completed performance of the subcontractor's work. If performance of the contract had been completed when the 'final bill' was mailed, the lien notices that were later filed were too late. However, a workman in the employ of Christenson returned to the building January 8, 1960, and performed work which, upon a portal-to-portal basis, consumed four hours. Christenson filed his lien claim February 8, 1960. Paulson sent a workman to the structure January 6, 1960, who spent there six hours in replacing some broken tiles and installing adjacent to the floor 84 feet of a rubber-like material which served the purpose of a base board or mop board. The Paulson Company filed its lien claim February 3, 1960. General Sheet Metal works performed some work upon the building January 6 and filed its lien claim February 2, 1960.

ORS 87.035 says:

'Every original contractor, within 60 days after the completion of his contract, and every mechanic, artisan * * * or other person, except the original contractor, claiming the benefit of ORS 87.005 to 87.075, within 45 days after the completion of the construction, or after he had ceased to labor thereon from any cause, or after he has ceased to furnish materials therefor, shall file for recording with the recording officer of the county in which the improvement, or some part thereof, is situated, a claim * * *.' ORS 87.045 states:

'(1) As an alternative method for determining the completion date of an improvement, the improvement shall be conclusively deemed completed as to all labor performed and materials used prior to the date of the notice described in this section, when the improvement has been substantially completed, or when it has been abandoned. * * *'

If the work performed by the three lien claimants in January was done 'after the completion of the construction,' as that term is used in ORS 87.035, the lien claims cannot be sustained. The owners (Behrens) claim that the work performed by each claimant in January was done 'after the completion of the construction,' that it was trifling in character, and was an after thought which was resorted to for the purpose of extending the period for filing a lien.

According to the plaintiff's brief he bound himself to perform the following work:

'* * * to do all the necessary electrical work in the store, rewiring where necessary, and installing panel boxes and connecting current to all items requiring electrical current. The contract states 'Complete hookup of the refrigeration units and cases and owner's light fixtures.' The Christenson Co. did not, and was not to provide any fixtures. These were provided by the owner.'

Eleanor Armstrong, the bookkeeper and office manager for Christenson, testified that on December 30 she mailed to the Carter Company a statement of account having this entry: 'Balance of the contract on Walt's Super Market $500,000.' Although that appeared to be a final billing, Mrs. Armstrong explained, 'I have billed contracts when they have to be completed,' and testified that since payment was not expected until in February she felt justified in sending the statement in December even though all the work had not been totally performed. According to her, 'there was not enough to bill on it to be of any significance.' Before she sent the bill, the workman who had been doing the work upon the job told her 'a little bit of work was left to be done on the contract.'

Leighton Lewis, a witness for the plaintiff Christenson, was the journeyman electrician in his employ who did much of the work upon the Behrens' building. Before completing the work he became ill and was confined to his home from sometime in November until 'a little after Christmas,' so he testified. Upon the orders of his superior he returned to the building January 8 and performed the work which we have mentioned. According to him,

'I believe Walt wanted the unit heaters hooked up, and I went out to do that.'

That was the occasion for his return to the structure January 8. He added:

'* * * I am sure there were some fixtures on the bread display racks that had to be completed. And then they had moved some equipment, just moved it around a little, in the meat department. And a piece of flex that was on the saw wasn't long enough, or removed from the reflector, and I replaced it with a longer piece of flex.'

Lewis, as we have seen, went to the structure to hook up some unit heaters. He discovered, however, that it was impossible to hook them up and explained the inability in this way:

'* * * The carpenters did not cut a scheduled hole to the attic, so the wiring was not accessible, and under...