Columbia River Door Co. v. Todd

• Decision Date: 15 October 1918
• Citation: 175 P. 443,90 Or. 147
• Parties: COLUMBIA RIVER DOOR CO. v. TODD ET AL. [*]
• Court: Oregon Supreme Court

175 P. 443

90 Or. 147

COLUMBIA RIVER DOOR CO. v. TODD ET AL. ^[*]

Supreme Court of Oregon

October 15, 1918

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by the Columbia River Door Company, a corporation, against W F. Todd (unmarried), E. P. Preble, William E. Markwood, and others, in which defendant last named filed cross-complaint seeking foreclosure of two mortgages. Judgment dismissing plaintiff's suit and foreclosing said mortgages, and plaintiff appeals. Decree rendered for plaintiff.

This is a suit to foreclose a mechanic's lien. The complaint alleges, substantially, that G. A. Morrison, doing business under the name of "G. A. Morrison Lumber Company," at the special instance and request of E. P. Preble contractor and agent of the defendant W. F. Todd, owner of the land, sold and delivered certain building materials consisting of lumber, hardware, paint, doors, and mirrors, to be used in, and which were used in, the construction of two certain buildings; that the reasonable value of the materials so furnished and used in the construction of the buildings is $1,145.85, no part of which has been paid. Then follow allegations of the filing of the lien, the assignment thereof to plaintiff, the allegation that $200 is a reasonable attorney's fee for the foreclosure, and a prayer for the relief sought. The owner of the premises, W. F. Todd, filed an answer, challenging the right of plaintiff to recover upon the grounds: (1) That the notice of lien was not filed within the statutory time after the completion of the buildings; (2) that prior to the delivery of any materials this defendant posted notices upon the premises that he (the owner) would not be responsible for any labor or materials used in the construction of the buildings; (3) that this defendant was never furnished with any invoices of any materials furnished for use in such buildings or any copies thereof, and was never notified by the G. A. Morrison Lumber Company of the furnishing of any materials or given any authority to so furnish them, until long after he had settled with his contractor. These allegations are followed by this averment:

"This answering defendant further alleges that he is informed, and has reason to believe and does believe, and therefore alleges, that much of the material now sought to be recovered for in this suit was not delivered upon said premises and never entered into the construction of the buildings thereon."

The defendant Markwood filed an answer and cross-complaint wherein he sought the foreclosure of two mortgages upon portions of the premises involved in the controversy, and praying that the liens of such mortgages be adjudged prior and superior to that of plaintiff. Replies having been filed, a trial resulted in a decree dismissing plaintiff's suit and foreclosing Markwood's mortgages. Plaintiff appeals.

A. T. Lewis, of Portland (Leslie S. Parker and Lewis, Lewis & Finnigan, all of Portland, on the brief), for appellant. (Allan R. Joy, of Portland, on the brief), for respondent Todd. L. E. Crouch, of Portland, for respondent Markwood.

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

The trial court failed to make any findings of fact or conclusions of law in this case, and therefore we lack his assistance in determining the credibility of witnesses whom we have never seen or heard, and we are also in the dark as to the legal conclusions upon which the decree was based. We have made a careful review of the evidence, which in many details is conflicting, and from it all we find the history of the transactions to be about as follows: Early in the spring of 1915, W. F. Todd, the owner of two contiguous lots with an aggregate frontage of 100 feet, entered into a contract with E. P. Preble, whereby the latter, for a stipulated price, agreed to erect three dwelling houses upon such lots. Preble arranged with G. A. Morrison, who was doing business under the name of the "G. A. Morrison Lumber Company," to furnish materials for the buildings consisting of lumber, doors, windows, hardware, mirrors, paints, and oils. The evidence as to the details of this arrangement is so conflicting that we are unable to say what they were. It is true that defendants introduced in evidence a so-called "estimate" which they claim was Morrison's bid for furnishing all of the materials for one house, and that all three were to be exactly alike as to dimensions and construction. Morrison, however, insists that, after his estimate was made, Preble made frequent changes in his plans, and that several estimates were subsequently made, none of which were adhered to. It also appears...