Heisler v. Hamilton Mammoth Mines Co., Inc.

• Citation: 223 P. 735,110 Or. 403
• Parties: HEISLER v. HAMILTON MAMMOTH MINES CO., INC., ET AL.
• Decision Date: 04 March 1924
• Court: Oregon Supreme Court

223 P. 735

110 Or. 403

HEISLER v. HAMILTON MAMMOTH MINES CO., INC., ET AL.

Supreme Court of Oregon.

March 4, 1924

Department 2.

Appeal from Circuit Court, Baker County; David R. Parker, Judge.

Action by Alfred Heisler against the Hamilton Mammoth Mines Co Inc., W. H. W. Hamilton, Hansen-Weis & Co., a corporation and E. L. Currier. Judgment for plaintiff and the Hamilton Mammoth Mines Company, Inc., a corporation, appeals. Affirmed.

This is an appeal from a decree foreclosing two miners' liens upon property specifically described in the liens and in the decree. One of the liens was filed by the plaintiff and the other was filed by his assignor. The complaint is in the usual form and was not moved against or demurred to. The answer admits the liens and does not question their validity. The two liens were admitted in evidence without objection. The lien in favor of the plaintiff contained the following statement:

" That during the month of January claimant employed to work upon said property one Hazelwood, who worked for a period of 15 days, and for which work claimant paid the said Hazelwood at the rate of $5 per day in work, which amounted to the sum of $75, and that claimant further paid a freight bill on supplies furnished to the property while the same was being operated of $7.99; no part of said last items have been paid."

A decree was rendered in the circuit court in favor of the plaintiff for the amount claimed in his lien less the amount paid to Hazelwood, and as freight, which amounts were waived by the plaintiff at the trial. The decree included the amount of the claim of plaintiff's assignor for the full amount of the claim.

The appellant claims, on appeal, that the liens in this suit are insufficient and void for four reasons: (1) Because the claim of the plaintiff included nonlienable items, to wit, $75 for services for Hazelwood and $7.99 for freight, and was " an indefinite amount for work on wagon road" ; (2) because it does not contain a true statement of the claim (3) " because whatever services were rendered, if any were contrary to and in defiance of positive instructions and posted notices of appellant" ; and (4) " because the entire transaction is permeated with the fraud of the lienors."

The appellant claims that the plaintiff was sick and did not work for 7 days during October, and on that claim bases its contention that the notice of lien is invalid because it does not deduct a proper amount on that account. The services extended from the 2d day of October to the 1st day of the following June. The plaintiff and his assignor were employed by W. H. W. Hamilton, who at that time was president and general manager of the defendant company Hamilton Mammoth Mines, the appellant. After the employment, the plaintiff and his assignor had worked for more than a month when some difficulty arose between other officers of the appellant and the said W. H. W. Hamilton. Leo B. Connolly, secretary and treasurer of the company, paid the plaintiff and his assignor their wages according to the agreement between them and the president and general manager of the appellant, up to and including the 20th day of November. Thereafter, to wit, in the following February, the said Leo B. Connolly posted three notices upon the mining property containing this language:

" That said owner will not be responsible for any debt, or debts, contracted by any person, or persons, other than said owner acting through its board of directors directly, and that it has no agents or other person, or persons, who are authorized to act for or on its behalf in any manner except its said board of directors."

The notice is dated January 31, 1922, and is signed Hamilton Mammoth Mines, Inc., by Leo B. Connolly, attorney for Hamilton Mammoth Mines, Inc.

Allan R. Joy, of Portland (Leo B. Connolly, of Boston, Mass., on the brief),...