Fitch v. Howitt

• Decision Date: 28 February 1898
• Citation: 32 Or. 396,52 P. 192
• Parties: FITCH et al. v. HOWITT et al. [1]
• Court: Oregon Supreme Court

52 P. 192

32 Or. 396

FITCH et al. v. HOWITT et al. ^[1]

Supreme Court of Oregon

February 28, 1898

Appeal from circuit court, Multnomah county; L.B. Stearns, Judge.

Suit by Fitch & Bryson against Joseph Howitt and others to foreclose a mechanic's lien. Defendants F.E. Beach, H.H. Hogue, and Nottingham & Co. claimed liens by cross bill, and from the decree giving them liens the defendant Howitt appeals. Defendants Beach and Hogue appeal from an order disallowing a part of their claims. Affirmed.

This is a suit to foreclose a mechanic's lien for materials furnished defendant J.F. McHenry, to be used in a house he was erecting upon the land of the defendant Joseph Howitt under a contract with the latter. The defendants F.E. Beach H.H. Hogue, and Nottingham & Co., having furnished to the contractor materials to be used in the construction of said building, filed claims for the value thereof, respectively as follows: $273.05, $392.87, and $32,--and, severally answering the complaint, set up, by way of cross bill, the facts constituting the right of each claimant to a lien on the real property sought to be charged therewith, and prayed that the same might be foreclosed. The defendant Howitt denied that either of the claims of Beach or Hogue contained a true statement of his demand, and also denied that the claim of Nottingham & Co. was filed within the time prescribed by law. The replies having put in issue the allegations of new matter contained in the answers, a trial was had; and the court found from the evidence that materials of the value of $80 and $67.87, furnished by Beach and Hogue respectively, were not used in said building, and gave a decree to Beach for $193.05, and $25 as attorney's fees to Hogue, for $325 and $70 as attorney's fees; to Nottingham & Co., for the amount demanded; ordered a sale of said land and building, and an application of the funds arising therefrom to the discharge of the several amounts so awarded. And Beach and Hogue each appeals from that portion of the decree disallowing a part of their respective claims, while Howitt appeals from the whole thereof, in favor of either of said defendants.

MOORE, C.J. (after stating the facts).

It is contended by Howitt's counsel that Beach and Hogue knew that certain material furnished by them, respectively, was not used in the building, and that the claims therefor were therefore willfully false; that, while Nottingham & Co. filed their claim within 30 days from the completion of the building, more than that period had elapsed after such material was furnished, and for these reasons no lien attached in either case to the real property sought to be incumbered in this statutory method. Counsel for Beach and Hogue jointly maintain that the material provided by their clients was furnished to be used in the erection of said building, and this fact alone entitles them to their liens for the respective amounts so demanded, notwithstanding some of this material may have been diverted from the purpose for which it was originally intended; while counsel for Nottingham & Co. insist that their clients, having filed their claim within 30 days from the completion of the house, complied with the requirements of the statute conferring the lien.

Considering first the rights of the latter claimants, the question is presented whether the lien was lost by the failure to file the notice thereof within 30 days from the time they ceased to furnish the material; it being admitted that it was filed within 30 days from the completion of the building. In Ainslie v. Kohn, 16 Or. 363, 19 P. 97, the court, construing in pari materia sections 3673 and 3678 of Hill's Annotated Laws of Oregon, held that the claim of lien, if filed within 30 days after the completion of the structure, was a compliance with the requirements of the statute. Thayer, J., in writing the opinion, says, "Whether the claim was filed within thirty days after the work and material were furnished is unimportant, provided it was done within thirty days after the house was completed." While this interpretation of the statute may be somewhat doubtful, it was approved in Curtis v. Sestanovich, 26 Or. 107, 37 P. 67; and, having become a settled rule, it must be held that the claim of Nottingham & Co. was filed within the time prescribed by law, and hence the lien was thereby preserved.

Considering Beach's claim next, the evidence tends to show that McHenry, at the time Howitt's building was in process of construction, was erecting a building for himself, and also another structure, known as the "Reed House"; that Beach furnished to McHenry material of the value of $297.05 to be used in the construction of Howitt's building, and delivered the same at the site thereof, but that McHenry without Beach's knowledge, removed therefrom, and used in the Reed building a portion of said material, of the value of $80; that Beach made no charges for material furnished on account of the latter building, but had an account, and charged McHenry, individually, with the value of certain material which he supposed was furnished for his own dwelling; that in a settlement with McHenry, on account of the contract price for the completion of the Reed house, it was discovered that certain material used therein was manufactured by Beach, or came from his establishment, whereupon the sureties on McHenry's bond for the faithful performance of said contract informed Beach of the discovery, who inspected the building, ascertained the value of such material, and accepted from the said sureties the sum of $80 in payment therefor, which amount he credited upon McHenry's...