Crane Co. v. Ellis

• Decision Date: 28 March 1911
• Citation: 114 P. 475,58 Or. 299
• Parties: CRANE CO. v. ELLIS et al.
• Court: Oregon Supreme Court

114 P. 475

58 Or. 299

CRANE CO. v. ELLIS et al.

Supreme Court of Oregon

March 28, 1911

Appeal from Circuit Court, Columbia County; Thos. A. McBride, Judge.

Action by the Crane Company against M. Ellis and others. From a judgment for plaintiff, defendant M. Ellis appeals. Reversed and suit dismissed.

E.B Seabrook (Gammans & Malarkey, on the brief), for appellant.

J.T McKee (Cake & Cake, on the brief), for respondent Crane & Co. Kollock & Zollinger, for respondent the Adamant Co.

A.T Lewis, for respondent Nottingham & Co.

EAKIN, C.J.

This is a suit to foreclose mechanics' liens. Plaintiff alleges that it has a lien in the sum of $114.87 for material and labor furnished to defendant W.A. Currie, contractor, in the erection of a building in Rainier, Columbia county, Or defendant M. Ellis being the owner of the lot and building; that a notice of lien was filed October 30, 1907, in the office of the county clerk of that county, alleging that the building was completed on October 15, 1907. Plaintiff further alleges that W.P. Fuller & Co. secured a lien on the building for the sum of $300 for material furnished to Currie in the construction thereof, notice of which lien was filed in the county clerk's office on the 31st day of October, 1907, and that thereafter such company duly assigned its claim and lien therefor to plaintiff. It is further alleged that the Adamant Company and Nottingham & Co. claim some interest in this property, and they are made parties defendant. The Adamant Company, by answer, alleges that it has a lien upon the building for the sum of $140.40 for material furnished to Currie for the construction thereof, notice of which lien was filed in the county clerk's office on the 12th day of November, 1907, and Nottingham & Co. alleges that it has a lien in the sum of $130 upon such building for material furnished to Currie in the construction thereof, notice of which lien was filed in the county clerk's office November 11, 1907. The answer of defendant Ellis makes special denials of parts of the complaint, and alleges that the building was completed on February 10, 1907, and that the notices of lien were not filed within 30 days after its completion, and therefore no liens are evidenced thereby. He makes similar answer to the cross-complaints of the Adamant Company and Nottingham & Co. The validity of the liens depends upon the time of the completion of the building. The contention of plaintiff is that, although the main structure of the building was erected by March 1, 1907, and was occupied thereafter by Ellis, the sewer connection between the building and the main sewer was not made until October 15, 1907; that it had been constructed from the street sewer toward the house prior thereto, but lacked 2 1/2 or 3 feet of connecting with the pipe extending out from the house; and that Currie completed the connection by placing a joint and a half of tile therein on October 15, 1907.

There is no contention that any other construction work was done after the middle of August, at which time the cement floor was laid in the basement. There is some conflict in the evidence whether the sewer had been connected before October 15th, but the evidence is convincing that it had been. Mr Haggan, a witness called by plaintiff, and who was employed by Currie about the 1st of August to test the pipes and complete the connection with the sewer, testified that after the sewer was tested he went to connect it and found that it...