Coffey v. Smith

• Decision Date: 17 November 1908
• Citation: 97 P. 1079,52 Or. 538
• Parties: COFFEY v. SMITH et al.
• Court: Oregon Supreme Court

97 P. 1079

52 Or. 538

COFFEY v. SMITH et al.

Supreme Court of Oregon

November 17, 1908

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

Suit by B.D. Coffey against O.M. Smith and others. Decree for plaintiff. Certain defendants appeal. Reversed and dismissed.

This is a suit to foreclose a mechanic's lien, and was instituted by B.D. Coffey, as an original contractor, against O.M Smith, who, it is alleged, is the owner of the dwelling house, the subject-matter of the lien, and the reputed owner of the lot upon which it was built, viz., lot 2, block 11 West Piedmont in Multnomah county. It is further alleged that the Title Guarantee & Trust Company, a corporation, one of the defendants, held the legal title, in trust, however, at the time the building was constructed, which was done with its knowledge and consent. Sarah A. Church, a subsequent purchaser thereof, was made a defendant, but, she having died pending the suit, her interest devolved upon her daughter Harriett E. McGuire, who was substituted as defendant. The lien claimed is for the reasonable value of material, alleged to have been furnished, and labor performed, between May 12, and December 13, 1905, in doing the plumbing in the construction of such dwelling. The amount of the claim is $100, after making a credit of $10, money received on account. It is alleged that on December 13, 1905, and within 60 days after the completion of the building, plaintiff filed his notice or claim of lien substantially as required by the statute, setting forth the same in full. Defendants Smith and the trust company answered, denying the material allegations of the complaint, and, as an affirmative defense, averred substantially that Smith entered into a contract with C.N. Willoughby, the owner of the equitable title to the lot, to construct this dwelling thereon, and that he sublet to plaintiff the contract for plumbing it, which the latter agreed to do, in accordance with the ordinances of the city of Portland, and to the satisfaction of the city plumbing inspector; that plaintiff entered on the performance of his contract, but wholly failed to complete the same in accordance with its terms, or at all, and that on July 25, 1905, he wholly abandoned his contract, and refused to complete the same. The reply put in issue the new matter of the answer, and after the taking of testimony, the court found in favor of plaintiff, and decreed that he have a lien on said building and lot for the amount of $90, and that the same be foreclosed. From such decree the defendants, answering, have appealed.

John H. Hall, for appellants.

Andrew T. Lewis and Walter G. Hayes, for respondent.

SLATER C. (after stating the facts as above).

Several important questions have been raised and presented to this court, but it will be necessary to refer to and consider but one of them, viz., whether the claim for a lien was filed within the time required by the statute. The right to assert and perfect a mechanic's lien is a statutory privilege ( Brown v. Harper, 4 Or. 89), and is in derogation of the common law, and can be established only by a clear compliance with the requirements of the statute. A party claiming such lien must show a substantial compliance therewith, and by his complaint must bring himself within its provisions. Pilz v. Killingsworth, 20 Or. 432, 26 P. 305; Allen & Krosel v. Rowe, 19 Or. 188, 23 P. 901; Curtis v. Sestanovich, 26 Or. 107, 37 P. 67; Gordon v. Deal, 23 Or. 153, 31 P. 287; Nicolai v. Van Fridagh, 23 Or. 149, 31 P. 288. By section 5644, B. & C. Comp., it is made the duty of every original contractor, within 60 days after the completion of his contract, to file his claim for a lien, while all other persons save the original contractor are required to file their claim within 30 days after the completion of the alteration or repair of the structure for which labor or material has been furnished. As to the latter, it has been settled by this court that it is within 30 days from the completion of the building, and not from the date of furnishing material, within which the claim for a lien must be filed. Ainslie v. Kohn, 16 Or. 363, 19 P. 97; Curtis v. Sestanovich, 26 Or. 107, 37 P. 67; Fitch v. Howitt, 32 Or. 404, 52 P. 192. But the time in which an original contractor must file his claim by the terms of the statute begins to run from the completion of his contract, and not from the completion of the building. If his contract should be for the construction of a building, "the completion of his contract" would correspond in time with the completion of the building, and in that event there would be no difference. But the contract of an original contractor, as it was in fact in this case, might be for the construction or repair of a particular part of the building, and the completion of the contract and that of the building would not necessarily be coterminous as to time. It will be observed that the complaint fails to state what was plaintiff's contract, but avers that he filed his claim for a lien on December 13, 1905, and "within 60 days after the completion of the building." The answer partially supplies this deficiency by alleging what were the terms of the contract, but it denies the averments of the complaint as to the time when the lien was filed. We cannot say, as a matter of law, that the completion of a contract to do the plumbing in a house under course of construction is "the completion of the building," and for this reason the complaint fails to make the necessary averment that the claim for a lien was filed "within 60 days after the completion of his contract," as required by the statute.

The parties in the trial of the case, however, have assumed that a proper issue had been framed by the pleadings as to whether the lien was filed within the time prescribed by the statute and for that reason we have examined the testimony and the record to determine that question. Defendants contend that plaintiff was not an...