Getty v. Ames

• Decision Date: 05 April 1897
• Citation: 48 P. 355,30 Or. 573
• Parties: GETTY v. AMES et al.
• Court: Oregon Supreme Court

48 P. 355

30 Or. 573

GETTY v. AMES et al.

Supreme Court of Oregon

April 5, 1897

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

Action by R.W. Getty against Kate F. Ames and others to foreclose a mechanic's lien. From a decree declaring void the liens of plaintiff and defendants Christensen & Johnson, plaintiff and said defendants appeal. Affirmed.

This is a suit to foreclose two alleged mechanics' liens claimed by plaintiff upon a building and fence belonging to the defendants Ames and Thibault. The defendants Christensen &amp Johnson, by their answer, deny the validity of said liens and set up and seek to foreclose a mechanic's lien of their own upon the same property for labor performed and material furnished. The defendants O'Connell and Flanagan are mortgage lien claimants, and by their answers controvert the validity of the Christensen & Johnson lien, and also those claimed by the plaintiff, and set up their mortgages and ask to have them foreclosed in this suit. After issue joined, a trial was had, resulting in a decree declaring the liens of plaintiff and defendants Christensen & Johnson void and foreclosing the mortgages of O'Connell and Flanagan; and from such decree this appeal is taken.

B.B. Beekman and A.M. Crawford, for appellant Christensen.

J.W. Bennett, for plaintiff. John F. Hall, for Ames and Thibault. J.W. Hamilton, for O'Connell and Flanagan.

BEAN J. (after stating the facts).

Although an oral argument was made for plaintiff, and a brief filed in his behalf, it is not clear that he has perfected an appeal to this court; but, waiving that point it is obvious that as to him the decree below must be affirmed. From the evidence it appears that about the 1st of May, 1893, he was hired by the defendants Ames and Thibault for the term of one year at a monthly salary of $125, to perform such labor and render such services for them as they might from time to time direct, and to furnish a team and carriage. In pursuance of this contract, he immediately entered upon and continued in their service until about the 15th of October, 1893, during which time, at irregular intervals, when not otherwise employed, he worked on a dwelling house and fence his employers were then building; but no separate account was kept of, or charge made for, the time actually employed in such labor, and the plaintiff's estimate of the value thereof is the merest guess. He was employed by the month, to render such services as his employers might require or demand, which it now seems included lienable and nonlienable work indiscriminately; but this does not entitle him to a lien for such labor or services as might otherwise come within the provisions of the lien law, for the court cannot undertake from extrinsic evidence to apportion the amount of his monthly salary between the lienable and nonlienable work performed by him. This question was considered in Allen v. Elwert, 29 Or, 444, 44 P. 826, and 48 P. 54, and the rule there announced is...