Dyer v. Thrift
| Decision Date | 21 February 1928 |
| Parties | DYER v. THRIFT ET AL. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Curry County; John C. Kendall, Judge.
Suit by Elbert Dyer against E. B. Thrift and others. From the decree plaintiff appeals. Affirmed.
This is a suit to establish and foreclose a mechanic's lien upon a tract of 840 acres of land in Curry county. There is no question of pleading involved; hence we shall proceed with a consideration of the evidence. For many years the land in question was owned by one A. H. Thrift. Upon his death, title became vested in the defendants, his heirs, as tenants in common. March 19, 1920, George P. Laird and three others entered into a contract whereby the four undertook to purchase the above tract of land from the defendants for the sum of $72,000, payable in installments. Later Laird acquired the interest of his three associates. While Laird was in possession, he conceived the idea of subdividing the ranch into tracts, most of which would contain approximately 60 acres. His plan included the construction of a county road across the land and the digging of a drainage canal. He and Laird testified that in January of 1922 the two entered into a contract whereby the plaintiff undertook to dig the canal at the price of $7.50 per rod. The plaintiff deposited the material excavated upon the north side of the ditch so as to render it usable for the proposed county road. The plaintiff claims $4,980, for his services in digging the ditch. Upon this sum he credits $1,000 paid him by the county as compensation for his service in throwing the excavated material upon the north side of the ditch. When the balance was not paid, the plaintiff filed a lien notice. Since there is no question about the regularity of this notice, we shall pass on to the next matter.
It will be observed from the foregoing that the plaintiff's contract was not with the owners of the fee, but with Laird the vendee. In his endeavors to render the fee liable to his claim, the plaintiff contends: (1) That one of the defendants, E. B. Thrift, was the agent of all the heirs, or at least of all those heirs who were the daughters of the deceased, and that he was familiar with Laird's plan of digging the ditch, and failed to post a nonliability notice within the statutory time. (2) That, when the defendants inserted in the contract of sale the following clause, they thereby appointed Laird and his associates their agents hence the defendants' interest in the land is liable for the debts contracted by the vendees in the improvement "And further agree to keep all of the buildings and appurtenances on the above-described property in good condition and in a good state of repair, and that they will not quit the said premises during the life of this agreement without replacing the said premises in as good a condition as of the date hereof." (3) In his further efforts to render the fee liable to the lien, the plaintiff contends that the defendants had actual knowledge on or about February 6, 1922, that the plaintiff had let a contract to dig the ditch; that in March Laird called upon three of the defendants, and showed them some blueprint plans upon which appeared an outline of the proposed drainage canal, and at that time explained to the three what he expected to do that, after the plaintiff commenced his work, defendant T. J. Thrift saw the ditch-digging machine upon the ranch, and was told what it was there for. The plaintiff contends that the defendants failed to post notices of nonliability within three days of the time that they acquired the foregoing information and that therefore their interest in the land is subject to his lien. In the circuit court the decree was for the defendants. The plaintiff appeals.
George P. Topping, of Bandon, for appellant.
M. W. Skipworth, of Marshfield (John D. Goss, of Marshfield, and A. J. Sherwood, of Coquille, on the brief), for respondents.
ROSSMAN, J. (after stating the facts as above).
Section 10191, O. L. provides:
"Every mechanic * * * builder, contractor, * * * and other persons performing labor upon * * * any * * * ditch * * * shall have a lien upon the same for the work or labor done * * * at the instance of the owner of the building or other improvement, or his agent; and every * * * person having charge of the construction, alteration or repair, in whole or in part, of any building or other improvement * * * shall be held to be the agent of the owner for the purpose of this act."
Section 10192 extends the lien to the land. Section 10194 provides:
"Every building. or other improvement mentioned in section 10191, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein; and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this act, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situated thereon."
Section 10214 provides:
"Any person or persons who shall hereafter clear any land or improve the same by ditching, * * * at the request of the owner, or with his knowledge or consent, shall have a lien on said land so improved, * * * for his wages and charges for the said service * * * which lien shall be preferred to every other lien, mortgage or incumbrance of a subsequent date unless such owner or person having or claiming an interest therein shall within three days after he shall have obtained knowledge of said clearing, ditching, * * * give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place on said land."
Plaintiff contends that the section of the contract quoted in the statement of facts preceding this decision, which required Laird to keep the premises in a good state of repair, constituted Laird defendants' agent within the contemplation of section 10191, O. L. To support this proposition he calls our attention to a number of authorities, of which the following are the best examples: Myers v. Strowbridge Estate, 82 Or. 29, 160 P. 135; Oregon Lumber & Fuel Co. v. Nolan, 75 Or. 69, 143 P. 935, 146 P. 474; Henderson v. Connelly, 123 Ill. 98, 14 N.E. 1, 5 Am. St. Rep. 490; Sheehy v. Fulton, 38 Neb. 691, 57 N.W. 395, 41 Am. St. Rep. 767. One reading these cases will observe that they rest upon the proposition that the party whom the court found to be agent was required by his undertaking to erect some definite structure. Thus, in Oregon Lumber & Fuel Co. v. Nolan, supra, the lessee was required to build upon the leased premises "a substantial rooming, boarding or apartment house building * * * at a cost of not less than $6,000." In Myers v. Strowbridge Est. Co., supra, some very extensive "changes, repairs, alterations, additions and improvements" were mentioned in the lease and the tenant was required to erect them "subject, however, to the approval of said lessor, and the plans therefor are to be submitted by the said lessee to the said lessor before any work, changes or improvements are made to said premises." In the Illinois and Nebraska cases the improvements to be erected by the vendee were agreed upon with similar particularity. It will be observed in all these cases that the parties had stipulated for some definite improvements, and the liens which constituted the subject-matter of the suit arose out of debts contracted while producing the structure which the tenant or vendee undertook to erect for his other contracting party. But in the present case Laird was required to build neither a road nor a ditch. The idea of making these improvements originated in his mind, and was not the result of any contractual obligation imposed upon him by those to whom the plaintiff says he bore the relationship of agent. To hold with the plaintiffs would charge the vendor's estate with a lien for debts contracted by his vendee while making the various sorts of improvements which might occur to a vendee's mind. Such is not the law. Wilson v. Gevurtz, 83 Or. 91, 163 P. 86, L. R. A. 1917D, 575.
The plaintiff does not attempt to connect himself with the owners of the fee by a contract directly with them. His efforts, as we have seen, to connect himself with the owners of the fee on the theory that Laird was agent...
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