Dailey v. Cremen

• Decision Date: 18 April 1916
• Citation: 80 Or. 183,156 P. 797
• Parties: DAILEY v. CREMEN ET AL.
• Court: Oregon Supreme Court

156 P. 797

80 Or. 183

DAILEY v. CREMEN ET AL.

Supreme Court of Oregon

April 18, 1916

In Banc.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Suit to foreclose a mechanic's lien by W. A. Dailey against Anna M. Cremen and others. From a decree of foreclosure, Anna M Cremen and another appeal. Affirmed.

This is a suit to foreclose a mechanic's lien upon a certain building situated in Portland, Or. The plaintiff claimed a lien for labor and material furnished in the alteration and repair of the building. The Thomas E. Hulme Company claimed a lien for materials furnished and labor performed in installing the plumbing. Sellick & Hoggan claimed a lien for material furnished and labor performed in building and placing metal partitions in the building. They also claimed as assignees of a lien of the Standard Box & Lumber Company for building material used in the alteration and repair of the building. The defendants A. Johnson & Co., claimed a lien for labor performed and materials furnished in the alteration and repair of the building. L. R. Kollock & Co., and T. B. M Somerville claimed similar liens. The court found adversely to the lien claims of C. A. Bartz, Pacific States Electrical Company, and Columbia Carriage & Auto Works, and also to the claim of plaintiff, Dailey, and made a favorable finding and decree as to the other claimants, from which decree the defendant Mary Cremen and another appeal. She was the owner of the building, and on the 31st day of July 1912, leased it to one E. H. Norton, giving him possession about September 1 1912. The lease contains the following provisions in regard to improvements and alterations:

"He said lessee, will make certain improvements and alterations in and to said building in the time and manner following, to wit: Said improvements and alterations must include the building and installing of safety deposit vaults in the first story of said building and the equipment of said vaults with suitable doors and linings and fixtures and trimmings; and said improvements and alterations may include such other things as said lessee desires. All of said improvements and alterations must be so made and installed as not to weaken or injure said building; and before work is commenced thereon said lessee must submit any plans and specifications therefor to said lessor, and allow her a reasonable time to examine the same, and make any objections she may have thereto. * * * If, however, said lessee fully and faithfully performs and complies with all his covenants and agreements herein contained, he may upon the expiration of this lease remove and appropriate to his own use said vaults and the doors and linings and fixtures and trimmings thereof. * * * He, the said lessee, will not, except as in paragraph numbered 'third' of this lease, and hereinafter in this paragraph provided, make any unlawful or improper or offensive use of or suffer or permit any strip or waste of or in or to said leased premises, or make or suffer to be made any alterations in or additions to said building hereby leased: Provided, however, that said lessee may at any time under the supervision of said lessor and in such manner as shall not weaken or injure or deface said building, make any alteration in or addition to said building which does not cost more than $500 and is proper for or necessary to any lawful use permissible under this lease to which said building is being or is about to be applied: And provided further that said lessee may at any time make any alteration in or addition to said building which does cost more than $500 in the following manner, to wit: (a) Said lessee must first, and before commencing work on said alteration or addition, submit the plans and specifications therefor to said lessor. * * * (b) Said lessee must second, and before commencing work on said alteration or addition, furnish a good and sufficient bond, with a surety thereon of the same kind as is required for the bond mentioned in paragraph numbered 'second' of this lease, in and by which bond said surety shall undertake and agree that said lessee shall make and install said alteration or addition in accordance with the plans and specifications therefor, and fully and promptly pay for all labor performed and materials furnished in the making and installation of said alteration or addition; and (c) said alteration or addition must be so made and installed as not to injure or weaken said building."

There was also a covenant that the lessee would not permit any law of the state of Oregon or ordinance of the city of Portland to be violated upon the premises, and a stipulation that the lessee would keep the premises free from liens, and that the lessor should not in any way be made liable for the cost of any alterations, repairs, or additions to the premises.

Sheppard & Brock, of Portland, for appellants. Kollock & Zollinger, of Portland, for respondents Dailey and others. Malarkey, Seabrook & Dibble, of Portland, for respondant Thomas E. Hulme Co. Lewis & Lewis, of Portland, for respondents A. Johnson & Co. and others.

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

Whether the stipulation in the lease as to the installation of safe deposit boxes in the building was mandatory or permissive cannot, in the view we take of this case, materially affect the result. From the whole testimony we find the facts to be these: That Mrs. Cremen, through her agent, W. N. Gatens, negotiated a lease of the premises to E. H. Norton, and subsequently put him in possession, such occupancy beginning about September 1, 1912, and on November 16, 1912, Norton forfeited his lease and was ejected from the premises; that all the alterations and repairs concerning which there is any dispute had been made at that date, and with the actual knowledge of defendant Mary Cremen and her agent; that she did not give the notice required by section 7419, L. O. L., and the building is therefore subject to such liens, unless by reason of matters hereinafter discussed the attempt to fasten them upon the property has become nugatory.

One of the objections to the validity of some of the liens is that the work was performed in a manner and with materials not permitted by the ordinances of the city of Portland, but said ordinances are not pleaded as required by section 90, L. O. L., nor proved by any certified copy. There is testimony of the officials that certain portions of the work did not comply with the ordinances, and was torn out and replaced for that reason, and that other parts of the work were commenced before permits were issued, but this testimony seems to be merely the construction the witnesses place upon the ordinances, and is incompetent. In any event we do not think materialmen and laborers are bound to know whether permits have been issued or whether the material furnished is to be used in a manner or is of a character which under the circumstances cannot be used in a building. That is a matter to be settled between the owner or lessee of the building and the city authorities, and in the absence from the record of the ordinance and building regulations of the city of Portland we are not inclined to consider the objection.

The fact that a portion of the material used in the alterations made in the building was subsequently torn out and other materials substituted can make no difference as to the right of the lienor to recover. He furnishes material "to be used" on the projected improvement, and, if it is actually furnished...