Hughes v. Lansing

• Citation: 55 P. 95,34 Or. 118
• Parties: HUGHES v. LANSING et al. [1]
• Decision Date: 05 December 1898
• Court: Supreme Court of Oregon

55 P. 95

34 Or. 118

HUGHES v. LANSING et al. ^[1]

Supreme Court of Oregon

December 5, 1898

Appeal from circuit court, Marion county; H.H. Hewitt, Judge.

Suit by John Hughes against E.Y. Lansing and others, in which the defendant J.C. Goodale answered, setting up a mechanic's lien against the defendant Lansing. There was judgment for the defendant Lansing, from which the defendant Goodale appeals. Affirmed.

This is a suit to foreclose a mechanic's lien. J.C. Goodale, a party defendant, answered, setting up a lien for lumber and materials furnished Plummer & Ault, which were used in several buildings constructed by them for the defendant E.Y Lansing, as original contractors. Lansing defends against this claim of lien by alleging, in effect, that Goodale, for a valuable consideration, waived his right thereto. The facts upon which the alleged waiver is based are, in substance, as follows: Goodale was engaged in the manufacture and sale of lumber, and J.E. Baker was his agent, empowered to conduct and carry on the business at Salem, Or. Baker was authorized to sign checks, receipt for collections, and to act as his agent generally in and about the business, but had no written authority except for signing checks. He had always attended to the necessary steps for perfecting liens, and as such agent sold the lumber and materials to Plummer & Ault, stated the account with them, and subsequently signed and verified the claim of lien for record. He admits the signing of the alleged waiver, but explains the manner of its procurement on cross-examination as follows: "I didn't see Mr Lansing the day that was given,--that receipt. In the first place, we gave the receipt to Plummer & Ault for the amount paid. Mr. Pugh wrote out that receipt, and sent it down there, and I supposed it was just a receipt that day, until I went out there, and Mr. Lansing said that it was a waiver and that was the first knowledge I had of what I had signed." The paper referred to is in the following language: "Salem, Oregon, March 15, 1894. Mr. E.Y Lansing, Salem, Or.: This is to certify that we, the undersigned Lumbering Co., do and hereby waive all claims for lumber or other materials furnished by us to Plummer & Ault (contractors), used in the construction of the various buildings erected, or being erected, on your premises south of Salem. J.C. Goodale, per Baker." E.Y. Lansing testified touching the matter as follows: "Well, the way that came was this: These small buildings--this cottage, barn, poultry house--was done under a verbal contract; and I had no way of protecting myself; and I said, when the payment became due to Plummer & Ault--I think it was five hundred dollars on this building. I said to Plummer--In fact, all my transactions were with Plummer. I said, 'I want you to bring'--I wanted to have those bills brought in; and he said, 'I will go and get your bills, and get you $10,000 more bond, if you want it.' Mr. Pugh was present. He came back with this receipt: 'Received payment for all the lumber furnished on the Lansing job.' Mr. Pugh was there, and I said to him, 'That seems a very improper way to do;' and he said, 'I will have a waiver drawn;' and, on his bringing me this waiver, I paid to Plummer & Ault the amount--I think it was five hundred dollars--on the contract." Goodale's account with Plummer & Ault shows a credit of $500 of the same date as the alleged waiver. Pugh was charged, as Lansing's architect, with the duty of overseeing the work as it progressed, and determining whether it was performed according to contract.

D.C. Sherman and Tilmon Ford, for appellant.

Geo. G. Bingham, for respondent.

WOLVERTON C.J. (after stating the facts).

Upon this state of the case it is contended, in behalf of Lansing, that Goodale waived his lien upon the buildings erected under contract with Plummer & Ault. That a party may waive his right to a mechanic's lien upon structures for the building of which his labor or materials have been employed is a matter about which there can be no controversy. The right to assert and perfect the lien given by statute is a privilege ( Brown v. Harper, 4 Or. 89) which he may exercise or not, at his pleasure. The statute (2 Hill's Ann.Laws Or. § 3669) provides that a person furnishing materials, etc., shall have a lien, and sections 3673, 3675, and 3677 the manner of preserving and perpetuating it. Now, while the statute gives the lien in the first instance for a specified time, without the assertion of any formal claim therefor, it is made incumbent upon the lienor, if he intends to preserve his lien, to make a record of such intention, and to bring suit thereon, within the time prescribed, and, if he does not observe these regulations the lien must be deemed to have lapsed. And he may, if he so desire, waive his right or privilege of invoking the protection which the statute has accorded him as well by direct and positive stipulations. Whether the paper above set forth constitutes such a waiver on the part of Goodale we shall now inquire. Lansing objected to making a certain payment upon his...