Drake Lumber Co. v. Lindquist

• Decision Date: 02 July 1946
• Citation: 179 Or. 402,170 P.2d 712
• Parties: DRAKE LUMBER CO. <I>v.</I> LINDQUIST ET AL.
• Court: Oregon Supreme Court

179 Or. 402

170 P.2d 712

DRAKE LUMBER CO.

v.LINDQUIST ET AL.

Supreme Court of Oregon.

Argued May 15, 1946.

Reversed July 2, 1946.

Rehearing denied September 10, 1946.

Appeal and error — Notice of appeal — Service

1. Addressing notice of appeal to adverse party or his attorney is usual, but is not necessary under statute relating to service of notice of appeal.

Appeal and error — Notice of appeal — Service

2. Notice of appeal was required to be served only on adverse parties appearing in proceeding to foreclose materialman's lien, or the attorney for such parties.

Appeal and error — Notice of appeal

3. An appeal would not be dismissed for failure of notice of appeal to be addressed to any one, where service was accepted by attorneys for the defendants who appeared in the proceedings.

Mechanics' liens — Purpose of lien law

4. The primary purpose of the mechanics' and materialmen's lien law is to secure and protect laborers and materialmen for the labor performed and material furnished in the construction of buildings.

Mechanics' liens — Construed liberally

5. The mechanics' and materialmen's lien law is remedial in nature and should be liberally construed so as to afford laborers and materialmen the greatest protection compatible with justice and equity.

Mechanics' liens — Compliance with statute

6. A person claiming a lien by virtue of the mechanics' and materialmen's lien law must show substantial compliance with the requirements of the law and must bring himself within the provisions of such law.

Evidence — Mechanics' liens

7. A printed form lien notice which was signed by "C.V. Drake President Drake Lumber Company" following the printed word "claimant", and on the back of which was typewritten "Drake Lumber Co. vs." the named defendant, was ambiguous as to whether corporation or C.V. Drake as an individual was claiming

the lien, and parol evidence was admissible to explain such ambiguity, notwithstanding that the affidavit referred to C.V. Drake as the claimant.

Mechanics' liens — Lien claimant

8. In suit to foreclose materialman's lien, allegations of amended complaint that corporation filed claim were improperly struck as inconsistent with lien notice attached to amended complaint, where lien notice did not state that individual rather than corporation claimed the lien, but presented an ambiguity as to whether corporation or president of corporation as an individual claimed the lien.

Mechanics' liens — Material — Notice of delivery

9. Under mechanics' lien and materialmen's lien law, the giving of notice to owner within seven days of delivery of material is not required to establish lien, where the material is furnished to the owner or to the common law or general agent of the owner as distinguished from the statutory agent.

Mechanics' liens — Delivery of material

10. In suit to foreclose materialman's lien, whether person to whom material was furnished according to notice of lien and the complaint was an agent under the materialman's lien law or had authority to bind persons designated in notice as the owner of the property, was a matter of pleading and proof.

Mechanics' liens — Contracts

11. Under mechanics' and materialmen's lien law, the contractual relations existing between the lien claimant and the owner of the property are not required to be stated in the notice of lien.

Mechanics' liens — Owner of property — Notice

12. The filing of lien notice containing true statement of claimant's demand, name of owner or reputed owner, name of person to whom the materials were furnished, and a description of the property to be charged with lien, did not preclude claimant from showing that the person to whom the materials were furnished was the common-law agent of the owner or reputed owner or that some one other than the reputed owner had an interest in the property.

Mechanics' liens — Notice of lien

13. A lien claimant stating in notice of lien that the materials were furnished to named person and that the named person's wife was the owner of the property, could allege in complaint in suit to foreclose lien that the named person acted on his own behalf and as common-law agent for his wife in purchasing the materials and

that wife held legal title in her own name in trust for herself and named person as tenants by the entirety.

Mechanics' liens — Original contractor

14. A person furnishing labor or material and labor on a contract direct with the owner is an "original contractor" within lien law, and a person furnishing merely material to be used in construction of building, whether furnished direct to the owner or to some one else, is a "materialman" and not an original contractor.

Mechanics' lien — Time for filing

15. A lien notice showing that it was filed within 30 days after completion of building was timely filed.

Appeal and error — Questions on appeal

16. A plaintiff declining to plead further after motions to strike portions of amended complaint were allowed, did not waive the right to question on appeal the circuit court's rulings on the motions to strike.

  See 40 C.J., Mechanics' liens, § 222
                

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

C.W. Pecore, of Portland, for appellant.

Eugene K. Oppenheimer, of Portland (Wilbur, Beckett, Oppenheimer, Mautz and Souther, of Portland, on brief), for respondentsCharles L. Doll and Janet A. Doll.

Irving Rand, of Portland (with Lowell C. Paget, of Portland, on brief), for respondentPaget Mortgage Company, a corporation.

Before BELT, Chief Justice, and ROSSMAN, BAILEY, BRAND and HAY, Justices.

REVERSED.REHEARING DENIED.

BAILEY, J.

This suit was instituted by Drake Lumber Company, a corporation, against Hugh Lindquist and Zoe Lindquist, husband and wife; Charles L. Doll and Janet A. Doll, husband and wife; Paget Mortgage Company, a corporation, and others, to foreclose a materialman's lien.The only defendants to appear in the proceeding were Charles L. Doll and Janet A. Doll, his wife, and the Paget Mortgage Company, hereinafter referred to as the defendants.From a decree awarding plaintiff judgment against defendantHugh Lindquist in the sum of $1,469.92, with interest, and dismissing the suit so as to all the other defendants, plaintiff has appealed, except from "the portion of said decree dismissing plaintiff's second cause of suit".The second cause of suit was settled, and we are concerned only with the first cause.

Appellant, hereinafter referred to as plaintiff, asserts that the circuit court erred in granting the defendants' motions to strike certain portions of its amended complaint, in sustaining defendants' demurrers to the amended complaint, and in dismissing the suit.

The amended complaint, after setting forth the corporate existence of the plaintiff and the defendant corporations and the marital status of the individual defendants, alleges that during all the times therein mentioned there was in the course of construction a dwelling house upon certain described real property in the city of Portland, Oregon.

We now quote paragraphs IV, V and VI of the amended complaint.That portion of paragraph IV in italics, all of paragraph V, beginning with the words "and said construction was commenced and carried on with her full knowledge," and all of paragraph VI, were stricken out by order of the circuit court, on motions of the defendants.

"IV.That the plaintiff, hereinafter sometimes referred to as `Claimant', furnished to the defendantHugh Lindquist, at his special instance and request, and delivered to said premises, certain lumber and supplies to be used and which were used in the construction of said building; that at the time said lumber and supplies were sold to said Hugh Lindquist, he was acting on his own behalf and as common law agent of Zoe Lindquist, his wife, with full authority to bind her interest in said property for the purchase price of said lumber and supplies.

"V.That at the time claimant commenced to furnish said materials, the defendantZoe Lindquist was the reputed owner of said property, and said construction was commenced and carried on with her full knowledge, approval and consent; that for a long time prior to November 24th, 1942, said Hugh Lindquist and Zoe Lindquist, his wife, were the owners of the land, as tenants by the entireties, upon which said building was constructed; that by deed recorded on the 24th day of November, 1942, in Book 720, at Page 456, of the Deed Records of Multnomah County, Oregon, said Hugh Lindquist, attempted to convey of record to his wife, Zoe Lindquist, his entire interest in said real property; that in truth and in fact it was secretly agreed between said Hugh Lindquist and said Zoe Lindquist at the time said deed was executed and recorded, that she, the said Zoe Lindquist, should hold the title to said property in trust for herself and the said Hugh Lindquist, her husband, to the same extent as though said deed had never been executed; that said deed was thereafter, and by decree entered in this Honorable Court on the 20th day of October, 1943, in a cause entitled Martin T. Morlan, d.b.a. Morlan Plumbing Co., plaintiff, vs. Hugh Lindquist and Zoe Lindquist, defendants, (Clerk'sNo. 151-904), cancelled, set aside, and held for naught, as having been made, executed and delivered to defraud the creditors of said Hugh Lindquist and Zoe Lindquist; that in truth and in fact, said Hugh Lindquist and Zoe Lindquist, husband and wife, were the actual owners of said property at the time plaintiff commenced to deliver said materials.

"VI.That plaintiff is informed and believes, and therefore alleges on information and belief, that on and prior to the 20th day of October, 1943, the said Hugh Lindquist and Zoe Lindquist, his wife, entered into an agreement wherein they agreed to sell said land and premises to the defendantsCharles L. Doll and Janet L. Doll, husband and wife; that one of the considerations of said agreement...