Christman v. Salway

• Decision Date: 28 March 1922
• Citation: 205 P. 541,103 Or. 666
• Parties: CHRISTMAN v. SALWAY ET AL. [a1]
• Court: Oregon Supreme Court

205 P. 541

103 Or. 666

CHRISTMAN v. SALWAY ET AL. ^[a1]

Supreme Court of Oregon

March 28, 1922

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Suit by R. Christman against F. R. Salway and others. From a judgment for plaintiff and certain of the defendants, the defendant named appeals. Affirmed in part, and remanded in part, with directions.

This suit involves the foreclosure of seven mechanics' liens. Four of the claimants, namely, Christman, Portland Hardwood Floor Company, W. L. Stevens, and F. R. Sanders, were subcontractors and performed labor and furnished material and have completely performed their subcontracts. Each of them failed to give notice to the owner, as required by the statute, that material was being furnished to the contractor and that a lien might be claimed for such material. O. A Phillips and C. E. Winston jointly claimed a lien for work and labor only. J. A. C. Tait & Co. and Inman Poulsen Lumber Company each claimed a lien for material, and each gave notice to the owner as required by the statute. F. R. Salway is the owner of lot 6, block 4, Evanston, an addition within the corporate limits of the city of Portland. T. C. Niner was the original contractor and contracted with each of the claimants for the labor and material for which the liens are claimed. He had contracted with the owner to furnish the material and labor, and to construct a dwelling house and garage upon said lot. He has been paid in full, and has since been adjudicated a bankrupt and discharged from his liabilities.

Christman commenced this suit to foreclose his lien, naming as defendants the owner, the contractor, and the other of said lien claimants, who each filed answers setting up their respective liens, and prayed for the foreclosure thereof. After a trial, a decree was entered, foreclosing each of said liens. The first four mentioned were decreed to have a lien for labor only; the remaining claimants were decreed a lien for the full amount claimed. Christman, in addition to his labor, was allowed an item of $20, charged for the construction of a sump trap installed at the instance of the owner himself. From this decree the owner has appealed.

O. A Neal, of Portland, for appellant.

Arthur H. Lewis and Wm. Cake, both of Portland (Lewis, Lewis &amp Finnegan, Cake & Cake, Leroy Lomax, and Frederick H. Drake, all of Portland, on the brief), for respondents.

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

Section 10191, Or. L., in effect provides that every person performing labor upon, or furnishing material of any kind to be used in the construction, alteration, or repair of, any building, shall have a lien upon the same for the work or labor done, or material furnished, at the instance of the owner of the building, or his agent; it also in effect provides that every contractor or other person having charge of the construction, in whole or in part, of any building, shall be held to be the agent of the owner for the purposes of the act; it requires every person furnishing material to any person other than the owner, for which a lien may be claimed, to deliver or mail to the owner of the property on, upon, or about which the material is to be used, not later than five days after the date of the first delivery, a notice in writing, stating that he has commenced to deliver material for use thereon, with the name of the contractor or other person ordering the same, and that a lien may be claimed for the material furnished; it also provides that, unless this written notice is given, a lien cannot be enforced for such material. It contains no provision requiring notice to the owner of work being done on the building.

It appears from the testimony that the contracts under which Christman, Portland Hardwood Floor Company, Stevens, and Sanders performed labor and furnished material, were entire contracts, entered into by the claimants with the contractor to furnish both labor and material, for which they were each to be paid a specific sum, and that no separate price was stipulated for either labor or material. It also appears that no notice was given to the owner, and that each of these claimants has lost his right to a lien for the material furnished for want of such notice.

The owner contends that the account stated in the claim of liens of each of the four last-mentioned claimants contains a lumping charge in which are mingled lienable77 and nonlienable items, not separately stated, and that it is impossible to ascertain or state from the account what amount is chargeable for the lienable items, and that each of said liens is therefore void.

It has often been held in this state that--

"An account containing a lumping charge, in which is mingled an item for which no lien is given, will not support a lien; and the defect cannot be cured by oral evidence, by means of which the items for which a lien is given may be separated from those for which a lien is not given." Williams v. Toledo Coal Co., 25 Or. 426, 36 Pa. 159, 42 Am. St. Rep. 799; Dalles Lumber & Mfg. Co. v. Wasco Woolen Mfg. Co., 3 Or. 527; Kezartee v. Marks, 15 Or. 529, 16 P. 407; Harrisburg Lumber Co. v. Washburn, 29 Or. 150, 44 P. 390; Hughes v. Lansing, 34 Or. 118, 55 P. 95, 75 Am. St. Rep. 574; Portland Floor Co. v. Spaulding Logging Co., 64 Or. 316, 130 P. 52; Stewart v. Spalding, 71 Or. 310, 141 P. 1127; Barr v. World Keepfresh Co., 77 Or. 95, 150 P. 747.

The word "account," as used in the rule above quoted, refers to the statement of account contained in the claim of lien filed, and not to an account kept between the parties of their transactions. If, in the account stated in the notice of lien, lienable and nonlienable items are separately stated, and the amount of the lienable items can be ascertained from an inspection of the claim of lien itself, and no other reason to vitiate the claim exists, except the fact that the account contains items which, by law, are not lienable, but which were inserted therein in good faith, the lien will be upheld. Harrisburg Lumber Co. v. Washburn, supra; Hughes v. Lansing, supra; Title Guarantee Co. v. Wrenn, 35 Or. 62, 56 P. 271, 76 Am. St. Rep. 454; Portland Floor Co. v. Spaulding Logging Co., supra; Stewart v. Spalding, supra; Barr v. World Keepfresh Co., supra; Columbia River Door Co. v. Todd, 90 Or. 147, 175 P. 443, 860.

An inspection of each of these claims discloses that there is no lumping charge contained in the statement of account, and that the charges for labor and for material are separately stated therein. The amount charged for labor can be readily ascertained from the accounts themselves, and therefore the liens are not subject to the objection that they contain a lumping charge in which are mingled items for which no lien is given, with items for which a lien is given.

The appellant next contends that because the subcontracts which the four claimants entered into with the contractor were entire, and included both labor and material, for which claimants were to be paid one round sum, with no stipulated price agreed to be paid for either labor or material, that having lost their right to a lien for the material, and it being impossible to ascertain from the contracts themselves what proportion of the contract price was agreed to be paid for the labor, the liens cannot be enforced for the labor alone or for any amount.

"Where lienable and nonlienable items are included in one contract for a specific sum, or are made the basis of a lumping charge, so that it cannot be perceived from the contract or account what proportion is chargeable to each, the benefit of the mechanics' lien law is lost. In such cases the court cannot, by extrinsic evidence, apportion the amount of the entire charge or contract price between the lienable and nonlienable items. But where the claimant's demand, made in good faith, consists of several different items separately charged, some of which are by law a lien upon the property, and others do not come within the scope of the statute, he may enforce his lien so far as given by law, and it is not vitiated because he has included therein nonlienable items." Allen v. Elwert, 29 Or. 444, 44 P. 826.

This rule was restated in Getty v. Ames, 30 Or. 573, 48 P. 355, 60 Am. St. Rep. 835, and Title Guarantee Co. v. Wrenn, 35 Or. 62, 56 P. 271, 76 Am. St. Rep. 454. In the former case the claimant had contracted, with the owners of the property against which the liens were sought to be enforced, to furnish a carriage and team, and to work for the term of one year at a monthly salary of $125, and to perform such services as from time to time might be directed. At irregular intervals, when not otherwise employed, he had done some work on a building and fence, but kept no separate account of the time he worked on either, and had made no separate charge therefor. He filed two liens, one on the fence and one on the building. After stating the rule above quoted, the court said:

"He was employed by the month to render such services as his employers might require or demand, which it now seems included lienable and nonlienable work indiscriminately. This, however, does not entitle him to a lien for such labor or services as might otherwise come within the provisions of the lien law, for the court cannot undertake from extrinsic evidence to apportion the amount of his monthly salary between the lienable and nonlienable work performed by him."

This is the only Oregon case we can find where the question of the enforcement of a mechanic's lien arising from the performance of an entire contract between the owner and the claimant was involved. In Allen v. Elwert, supra, and Title Guarantee Co. v. Wrenn, supra, liens were claimed for the reasonable value of materials which...