Coleman v. Oregonian R. Co.
| Decision Date | 29 January 1894 |
| Citation | 25 Or. 286,35 P. 656 |
| Parties | COLEMAN v. OREGONIAN R. CO. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.
Action by R.R. Coleman against the Oregonian Railroad Company to enforce a subcontractor's lien. From a judgment for plaintiff, defendant appeals. Reversed.
L.L. McArthur and Cake & Cake, for appellant.
W.T Muir, for respondent.
This is a suit against a railroad company to foreclose a subcontractor's lien under the act of February 25, 1889 (Laws 1889, p. 75.) From the pleadings and evidence it appears that in August, 1890, the defendant corporation contracted with one Burch to furnish 3,000 cords of wood, to be delivered in certain quantities, at stated intervals alongside of its railroad track, for which it agreed to pay $2.40 a cord, on the 20th day of each month, for the wood delivered during the preceding month. In October, 1890, Burch sublet to plaintiff a contract for cutting the wood at a stipulated price per cord, to be paid as payments were made to him by the company. On January 20, 1891, there was due the plaintiff, on his contract with Burch, the sum of $1,130 for wood cut and delivered during the preceding month, and for which the company was indebted to Burch in the sum of $1,488.25. In order to secure a lien upon the property of the company for the money due him, the plaintiff, on January 22, 1891, served a notice in writing, as required by section 2 of the act of 1889, on the manager of the defendant corporation, at its principal office in the city of Portland. Prior to the service of this notice, however, the money due Burch from the corporation had been garnished under an execution issued on a judgment in favor of one Dawson, recovered in an action brought by him against R. Burch, whom we think the evidence clearly shows to be the same person to whom the company was indebted, and the money had been paid over to the sheriff on the execution.
Upon these facts the important question for decision relates to the priority of lien between a judgment creditor of a contractor with a railroad company, who has duly garnished or levied upon the amount due his debtor from the company, and a subcontractor who, subsequent to the service of the garnishee process, gave the notice of lien required by the act under consideration. Section 1 of the law which governs the rights of the plaintiff in this case provides that any person who shall, as subcontractor, material man, or laborer, furnish to any contractor of a railroad corporation any fuel, ties materials, supplies, or other article or thing, or who shall do or perform any work or labor for such contractor, in conformity with the terms of any contract which such contractor may have with a railroad corporation, shall have a lien upon all the property, real, personal, and mixed, of said railroad corporation: Section 2 provides, in substance, that the person performing such labor shall cause a notice in writing of his intention to claim such lien to be served upon the officer of the corporation upon whom service of summons may be made, at the principal office of the company. This statute, in effect, provides that every subcontractor, material man, or laborer performing work or furnishing material for any contractor of a railroad company may, upon compliance with its terms, acquire a lien upon the property of the company to the extent of the amount...
To continue reading
Request your trial