Curtis v. Sestanovich

• Citation: 37 P. 67,26 Or. 107
• Parties: CURTIS v. SESTANOVICH et al.
• Decision Date: 05 July 1894
• Court: Supreme Court of Oregon

37 P. 67

26 Or. 107

CURTIS v. SESTANOVICH et al.

Supreme Court of Oregon

July 5, 1894

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by E.D. Curtis against A.M. Sestanovich and others. Judgment for plaintiff. Defendants appeal. Affirmed.

This is a suit to foreclose a mechanic's lien. The Pacific Builders' Supply Company, a corporation, furnished materials to the contractors, to be used, and which were used, in the construction of a brick building at Salem, Or for John Hughes; and, not having received full payment therefor, filed with the proper county clerk, on the 20th day of July, 1892, a duly-verified claim of lien, of which the following is a copy: "Know all men by these presents that the Pacific Builders' Supply Company, a corporation under the laws of the state of Oregon, has, by virtue of a contract heretofore made with Sestanovich & Childs, George Ham, Joseph Nickum, and Wm. J. Kelly, of the firm of Ham Nickum & Co., of Portland, Oregon, performed labor upon and furnished materials to be used in, and which were used in the construction, alteration, repair, and completion of a brick building at Salem, Oregon, upon the premises hereinafter described, for John Hughes, the said Sestanovich & Childs, and George Ham, Joseph M. Nickum, Wm. J. Kelly, of the firm of Ham, Nickum & Co., being the original contractors, and having a contract for the erection, repair alteration, and completion of said building upon said property belonging to said John Hughes. That the materials so furnished to said Sestanovich & Childs, George Ham, Joseph M. Nickum, and Wm. J. Kelly, of the firm of Ham, Nickum & Co., and used in said building, and the labor performed upon said building, consisted of pressed brick and terra cotta, which said materials and labor are more fully set out and described in the bill of particulars hereto annexed, and marked 'Exhibit A,' and made a part hereof, and being of the reasonable value of ($725.43) seven hundred and twenty-five and 43-100 dollars. The land upon which said buildings are constructed was, at the time said contract was made with said Sestanovich & Childs, George Ham, Joseph M. Nickum, and Wm. J. Kelly, of the firm of Ham, Nickum & Co., and still is, owned by the said John Hughes, and said land is known and particularly described as follows: ***. That the contract and reasonable price of said materials furnished and labor performed by the said Pacific Builders' Supply Company to be used in, and which were used in, the construction, repair, and furnishing of said buildings, was and is the sum of seven hundred and twenty-five and 43-100 dollars, upon which there has been paid the sum of one hundred dollars, and no more, leaving a balance due of six hundred and twenty-five and 43-100 dollars, after deducting all just credits and offsets; the whole of which is past due. That said bill of particulars hereto annexed and marked 'Exhibit A' shows the amount and kind of materials furnished and labor performed, all of which was furnished and performed as aforesaid, the price of which and the time when the same were furnished and performed, giving the credits for all payments thereon, and deducting all that ought to be deducted therefrom, and exhibits the balance justly due to the said Pacific Builders' Supply Company, and contains a true statement of their demand after deducting the just credits and offsets. That it is the intention of the said Pacific Builders' Supply Company to claim the benefit of an act of the legislative assembly of the state of Oregon, entitled 'An act for securing liens for mechanics, laborers, material men and others, and prescribing the manner of their enforcement,' approved February 11, 1885, and amendments thereto, and to secure and hold a lien upon the premises hereinafter described, and upon the buildings before mentioned and described, with the land upon which the same are erected, together with convenient space around the said building and about the same, or so much as may be required for a convenient use and occupation thereof. That thirty (30) days have not elapsed since the said Pacific Builders' Supply Company has ceased to furnish the materials for and perform the labor aforesaid upon said building, nor have thirty (30) days elapsed since the completion of said building. [ Signed] The Pacific Builders' Supply Company, by C.H. Richards, Agent,"--and on the 3d day of August, 1892, commenced this suit to foreclose the alleged lien; but, the said corporation having thereafter made a general assignment to E.D. Curtis, he was, by order of the court, substituted therefor. The court, at the hearing, held the lien valid, and decreed a sale of the property to pay the amount claimed, with costs and disbursements, $100 attorney's fees, and $3 for preparing and recording the notice of lien, from which decree all the defendants, except John Hughes, appeal.

A.H. Tanner, for appellants.

John H. Hall, for respondent Curtis.

B.F. Bonham, for respondent Hughes.

MOORE J. (after stating the facts).

Several objections are here urged to the sufficiency of the notice or claim. It is contended that it fails to give or state in direct, clear, and positive terms (1) the name of the owner of the building for which the materials were furnished; (2) to whom the materials were furnished; (3) the relations existing between the owner and the persons to whom such materials were furnished; (4) a true statement of the demand, with debits, credits, and dates; (5) the date of the completion of the building, or when the materials were furnished; and (6) it is further contended that it appears from the record that the claim was not filed within 30 days after the materials were furnished, or within that time after the completion of the building. We shall consider these objections in the order in which they have been presented.

1. The statute (section 3673, Hill's Code) requires the claimant, in his notice of lien, to state the name of the owner of the building sought to be charged with the lien. The authorities are unanimous in support of the doctrine that what the statute requires in order to perfect the lien is a condition precedent, and must be complied with before the lien can attach to any property. The lien begins with the commencement of the construction of the building, grows with its growth, and ripens with its completion; but, however equitable the claim may be, it does not attach to the building unless the claimant, within the time prescribed by law, prepares and files a notice thereof, containing all the statutory requirements. When the lien once attaches to the building, it by relation also attaches to whatever interest the owner of the building has in the soil that supports it if it appears from the notice that the owner of the building has some interest therein. "It is," says Strahan, C.J., in Kezartee v. Marks, 15 Or. 535, 16 P. 407, "the owner of 'such building or other improvements' whose name must be specified in the notice, and not the owner of the land where the same is erected." In Gordon v. Deal, 23 Or. 154, 31 P. 287, Bean, J., in discussing this question, says: "It is not sufficient that the name of the owner appears in the lien incidentally, or as part of the description of the property, but that he is the owner of the building sought to be charged must appear on the face of the lien as an independent matter, either directly or...