Lorenz Co. v. Day & Co.

• Citation: 300 P. 949,136 Or. 605
• Parties: LORENZ CO. v. DAY & CO. ET AL.
• Decision Date: 23 June 1931
• Court: Supreme Court of Oregon

300 P. 949

136 Or. 605

LORENZ CO. v. DAY & CO. ET AL.

Supreme Court of Oregon

June 23, 1931

Department 1.

Appeal from Circuit Court, Klamath County; W. H. Duncan, Judge.

On plaintiff's motion for rehearing and motion of defendant B. A. Kliks to strike brief in support of petition for rehearing, and motion for modification of original opinion.

Motion for rehearing and to modify original opinion overruled, and motion to strike brief sustained.

For original opinion, see 298 P. 222.

KELLY J.

Defendant B. A. Kliks moves to strike the brief in support of the petition of plaintiff for rehearing on the ground that the same is not printed. Rule 25 of this court provides that counsel may accompany a petition for rehearing with a printed brief of the authorities upon which they rely in support thereof, but no oral or typewritten argument will be heard or considered thereon. Pursuant to this rule the motion to strike must be sustained. This leaves plaintiff's motion for rehearing unsupported by brief or argument to be determined. In an attempt to give consideration to the law applicable to this case, with other authorities consulted the writer has carefully read and considered the following Harrisburg Lumber Co. v. Washburn, 29 Or. 150, 44 P 390; 2 Devlin on Deeds (3d Ed.) p. 2026, § 1043; 18 C.J. p 278, § 243 and notes; Kanne v. Otty, 25 Or. 531, 36 P. 537; Brace & Hergert Mill Co. v. Burbank et ux., 87 Wash. 356, 151 P. 803, Ann. Cas. 1917E, 739.

The case of Harrisburg Lumber Co. v. Washburn, supra, is clearly distinguishable from the case at bar. In that case a single building was described as a church and it was shown to be the only church of the denomination mentioned in the claim of lien which had been constructed in Harrisburg wherein the real property attempted to be described was situated.

Section 243, vol. 18, C.J. p. 278, declares the familiar rule that a grantor will be deemed to have intended to convey land owned by him when the description in his conveyance is equally applicable to two tracts of land only one of which the grantor owns. Similarly, section 1043 of vol. 2, Devlin on Deeds, supra, declares that such an ambiguity may be explained by showing which one of the several tracts was claimed by the grantor. Kanne v. Otty, supra, is a suit to establish a boundary line. These authorities shed no light upon the requisites of a description of the building or other structure upon which a mechanic's lien is sought to be impressed.

Brace &amp Hergert Mill Co. v. Burbank, supra, construes the notice of initial delivery mailed to the owner of the building upon which a mechanic's lien was thereafter filed. It is distinguishable from the case at bar, in that in the case at bar we are construing the claim of lien upon which constructive notice to third parties depends.

We adhere to our former holding, Lorenz Co. v. Gray, 298 P. 222, in respect to plaintiff's claim of lien, and plaintiff's motion for rehearing is therefore overruled.

In a motion for a modification of our original opinion, defendant B. A. Kliks urges that this court erred in allowing the lien of respondent J. M. Gray. We made no such order of allowance. We held that inasmuch as no demurrer had been interposed to the answer and cross-complaint of defendant, there was a waiver of the question of the effect of the failure of said defendant to allege compliance with section 59-1903, Oregon Code 1930.

We held that, for reasons stated, the circuit court erred in overruling the demurrer to plaintiff's complaint. An application to file an amended complaint, if one is made, should be addressed to the discretion of the trial court. If an order allowing plaintiff to file an amended complaint is made, it would follow that the issues if any tendered by defendants would again have to be joined. It is for the trial court in the first instance to determine the manner in which this may be done. While we have made no order of allowance of the claim of defendant Gray, neither have we made one of disallowance thereof. The questions which may be presented upon retrial with respect to this claim, as well as all others not disallowed in our original opinion, may depend upon pleadings yet to be filed as well as testimony yet to be heard. We would not be justified in attempting to anticipate these questions.

Defendant B. A. Kliks also argues that we erred in failing to concur with his contention that his mortgage is a purchase money mortgage. Pacific Spruce Corporation v Oregon Cement Co., 133 Or. 223, 286 P. 520, 289 P. 489, is cited as holding to the contrary. In that case the Newport Hotel Company executed its mortgage upon certain real property to M. S. Woodcock and at the same time Woodcock executed a deed...